(ประมวลกฎหมายแพ่งและพาณิชย์)
16 rows The Civil and Commercial Code of Thailand contains the property law. Civil Procedure Code. For full text of legislation, please click here. Thailand _The Civil Procedure Code.pdf. Law of Thailand - Wikipedia, the free encyclopedia. The laws of Thailand are based on the civil law, but have been influenced by common law (see also world legal systems).
--------------- Section 1 . This law shall be called the Civil and Commercial Code (ประมวลกฎหมายแพ่งและพาณิชย์). Section 2. It shall come into force on the 1 st date of January B.E. 2468. Section 3. On and from the day of operation of this Code, all other laws, bye laws and regulations in so far as they deal with matters governed by this Code or are inconsistent with its provisions shall be repealed. BOOK I GENERAL PRINCIPLES TITLE I GENERAL PROVISIONS Section 4. The law must be applied in all cases which comes within the letter and spirit of any of its provisions. Where no provision is applicable, the case shall be decided by analogy to the provision most nearly applicable, and, in default of such provision, by the general principles of law. Section 5. Every person must, in the exercise of his rights and in the performance of his obligations, act in good faith. Section 6. Every person is presumed to be acting in good faith. Section 7. Whenever interest is to be paid, and the rate is not fixed by a juristic act or by an express provision in the law, it shall be seven and a half per cent per year. Section 8. 'Force majeure' denotes any event the happening or pernicious result of which could not be prevented even though a person against whom it happened or threatened to happen were to take such appropriate care as might be expected from him in his situation and in such condition. Section 9. Whenever a writing is required by law, it is not necessary that it be written by the person from whom it is required, but it must bear his signature. A finger print, cross, seal or other such mark affixed to a document is equivalent to a signature if it is certified by the signature of two witnesses. The provisions of paragraph two shall not apply to a finger print, cross, seal or other such mark affixed to a document before the competent authorities. Section 10. When a clause in a document can be interpreted in two senses, that sense is to be preferred which gives some effect rather than that which would give no effect. Section 11. In case of doubt, the interpretation shall be in favour of the party who incurs the obligation. Section 12. Whenever a sum or quantity is expresses in letters and in figures, and the two expressions do not agree, and the real intention cannot be ascertained, the expressin in letters shall be held good. Section 13. Whenever a sum or quantity is expressed several times in letters or several times in figures, and the several expressions do not agree, and the real intention cannot be ascertained, the lowest expression shall be held good. Section 14. Whenever a document is executed in two versions, one in the Thai language , the other in another language, and there are discrepancies between the two versions, and it cannot be ascertained which version was intended to govern, the document executed in the Thai language shall govern. (up) TITLE II PERSONS CHAPTER I NATURAL PERSONS PART I Personality Section 15. Personality begins with the full completion of birth as a living child and ends with death. A child en ventre sa mere is capable of rights provided that it is thereafter born alive. Section 16. In calculating the age of a person, the birth day shall be counted. If only the month of birth is known, the first day of such month shall be counted as the birthday but if it is not possible to ascertain the date of birth of a person, his age is calculated from the first day of the official year during which such birth took place. Section 17. When several persons have perished in a common peril, and it is not possible to determine which of them perished first, they will be presumed to have died simultaneously. Section 18. If the right to use of a name by a person entitled to it is disputed by another, or if the interest of the person entitled is injured by the fact that another uses the same name without authority, then the person entitled may demand from the other abatement of the injury. If a continuance of the injury is to be apprehended, he may apply for an injunction. PART II CAPACITY Section 19. A person, on completion of twenty years of age ceases to be a minor and becomes sui juris. Section 20. A minor becomes sui juris upon marriage, provided that the marriage is made in accordance with the provisions of Section 1448. Section 21. For the doing of a juristic act, a minor must obtain the consent of his legal representative. All acts done by him without such consent are voidable unless otherwise provided. Section 22. A minor can do all acts by which he merely acquires a right or is freed from a duty. Section 23. A minor can do all acts which are strictly personal. Section 24. A minor can do all acts which are suitable to his condition in life, and actually required for his reasonable needs. Section 25. A minor, after completing fifteen years of age, can make a will. Section 26. When the legal representative permits a minor to dispose of property for a purpose specified by him, the minor may, within the limits of such purpose, dispose of it at his pleasure. He may do the same as to property which he has been permitted to dispose of without any purpose being specified. Section 27.The legal representative may permit a minor to carry on a commercial business or other business, or to enter into a hire of services contract as an employee. In case of refusal by the former without reasonable ground, the minor may apply in the Court for granting permission. The minor shall, in relation to the carrying on of business or the hire of services under paragraph one, have the same capacity as a person sui juris. If the carrying on of a business of service so permitted under paragraph one causes a serious damage or injury to a minor, the legal representative may terminate the permission granted to the minor or may, in case of having been granted by the Court, apply to the Court for revocation of the permission granted. therefore If the permission is unreasonably terminated by the legal representative, the minor may apply to the Court for revoking the termination of permission of the legal representative. The termination of permission may by the legal representative or the revocation of permission by the Court would make the minor's capacity of a person sui juris cease to exist, but does not affect any acts done by the minor before the termination or revocation of the permission. Section 28. A person of unsound mind may be adjudged incompetent by the Court on the application of any spouse, ascendants, descendants, guardian or curator, a person taking care of the person or the Public Prosecutor. The person adjudged incompetent under paragraph one must be placed under guardianship. The appointment of guardian, power and duties of guardian, and termination of guardianship shall be in accordance with provisions of Book V of this Code. The order of the Court under this Section shall be published in the Government Gazette. Section 29. An act done by a person adjudged incompetent is voidable. Section 30. An act done by a person of unsound mind but not adjudged incompetent is voidable only when the act was done at a time he was actually of unsound mind, and the other party had knowledge of such unsoundness. Section 31. If the cause of the incompetence ceases to exist, the Court shall, on the application of the person himself or of any of the persons mentioned in Section 28, revoke the adjudication. The order of the Court revoking the adjudication under the Section shall be published in the Government Gazette. Section 32. A person who has physical or mental infirmity, habitual prodigality or habitual intoxication or other similar causes that make him incapable of managing his own affairs, or whose management is likely to cause detriment to his own property or family, may be adjudged as quasi incompetent by the Court upon application by any of the persons specified in Section 28. The person adjudged quasi-incompetent under paragraph one must be placed under curatorship. The appointment of curator shall be in accordance with the provisions of Book V of the Code. The order of the Court under the Section shall be published in the Government Gazette. Section 33. If it is found by the Court in trial of the case for a person to be adjudged incompetent on account of unsound mind that he is not a person of unsound mind but has mental infirmity, he may, if is deemed suitable by the Court or upon the application of the party or the persons specified in Section 28, be adjudged as quasi-incompetent. The same shall apply if it is found by the Court in trial of the case for a person to be adjudged quasi-incompetent on account of mental infirmity that he is a person of unsound mind, he may, if it is deemed suitable by the Court or upon the application of the party or the person specified in Section 28, be adjudged as incompetent. Section 34. A quasi incompetent person must obtain the consent of his curator for doing the following acts:
For acts other than those mentioned in paragraph one, the conduct of which by a quasi-incompetent may detriment to his own property or family, the Court is empowered, in giving and order effecting any person to be quasi-incompetent or upon the application made subsequently by the curator, to instruct the quasi-incompetent to obtain consent of the curator prior to conduct of such acts. If the quasi-incompetent cannot do any act as mentioned in paragraph one or paragraph two by himself because of his physical or mental infirmity, the Court may give an order empowering the curator to act on behalf of the quasi incompetent, and the provisions relating to guardian shall apply mutatis mutandis. The order of the Court under this Section shall be published in the Government Gazette. Any act contrary to the provisions of this Section is voidable. Section 35. If the curator does not give consent to the quasi-incompetent for doing any acts under Section 34 with unreasonable ground, the Court may, upon the application of the quasi-incompetent, permit him to do the act without having to obtain consent of his curator, should the act will be beneficial to the quasi-incompetent. Section 36. If the cause for the Court adjustment of the quasi-incompetent ceases to exist, the provisions of Section 33 shall apply, mutatis mutandis. PART III Domicile Section 37. The domicile of a natural person is the place where he has his principal residence. Section 38. If a natural person has several residences where he lives alternately, or various centers of habitual occupation, either one shall be considered his domicile. Section 39. If the domicile is not known, the place of residence is deemed to be his domicile. Section 40. The domicile of a natural person who has no habitual residence, or employs his life in voyages without a central place of business shall be held to be the place where is found. Section 41. The domicile is changed by transferring the residences with manifest intention of changing. Section 42. If a person selects any place with manifest intention of making it a special domicile for any act, which is deemed to be the domicile in respect to such act. Section 43. The domicile of husband and wife is the place where husband and wife cohabit as a couple unless either husband or wife expresses his/her intention to have a separate domicile. Section 44. The domicile of a minor is that of his legal representative who is the person exercising parental power or the guardian. Section 45. The domicile of an incompetent person is that of his guardian. Section 46. The domicile of a public official is the place where he exercises his function, provided that such function is not temporary, periodical or mere commission. Section 47. The domicile of a convict by a final judgment of the court or by a lawful order is the prison or correctional institution where he is imprisoned until his release.
PART V
Disappearance
Section 48. If a person has left his domicile or residence without having appointed an agent with general authority and it is uncertain whether he is living or death, the Court may, on the application of any interested person or of the Public Prosector, order such provisional measures to be taken as may be necessary for the management of property of such person.
The Court may appoint a amanager of the property after one year has elapsed from the day when he has left his domicile or residence if no news of him has ever been received, or from the day when he ahs last been seen or heard of.
Section 49. If an agent with general authority has been appointed by the absent person but his authority comes to an end, or it appears that his management is likely to cause injury to the absent person, the provisions of Section 48 shall apply mutatis mutandis.
Section 50. The court may, on the application of any interested person or of the public prosecutor, order an inventory of the property to be made by the agent with general authority, incompliance with an injunction to be given by the court. Section 51. Subject to the provisions of Section 802, if it is necessary for the agent with general authority to do any act beyond the scope of his authority, he must apply for court’s permission and may do so on obtaining such permission. Section 52. The manager who appointed by the court must finish making the inventory of the property of the absent person within three months as from the day on which the appointment order of the court comes to his knowledge. However, the manager may apply to the court for the extension of the time. Section 53. The inventory under Section 50 and Section 52 must be made in the presence of, and signed by two witnesses. Such two witnesses must be a spouse or a relative being of age of the absent person. If neither spouse nor relatives is found, or the spouses and relative refuse to be witnesses, other persons being of age may act as witnesses. Section 54. The manager has such power of an agent with general authority as provided in Section 801 and Section 802. If the manager deems it necessary to do any acts beyond the scope of his authority, he must apply for the court’s permission and may do so on obtaining such permission. Section 55. If the absent person has appointed an agent with special authority, the manager cannot interfere with such special agency, but he can apply to the court for an order removing the agent if it appears that his management is likely to cause injury to the absent person. Section 56. The court may, on the application of any interested person or of the public prosecutor or of its own motion; (1) Require the manager to give proper management security and return of the property entrusted to him. Section 57. The court may, in the order appointing the property manager, determine a remuneration to be paid to the manager out of the property of the absent person; in default of which the manager may afterwards applies to the court for determining such remuneration. The court may, on the application of the manager or of an interested person or the public prosecutor, or of its own motion when it appears that circumstances on the property management have changed, give an order effecting the determination, suspension, decrease or increase of the remuneration, or anew remuneration payment to be made to the manager. Section 58. The authority of the manager comes to an end upon:
Section 59. When the authority of the manager comes to an end under Section 58 (4) (5) or (6), the manager or his heir, administrator, guardian, curator, official receiver of the person charged with the duty to take care of the property manager, as the case may be, must inform the court without delay of such ending for the court will give an order concerning the property manager as it deems proper. During such period of time, the said person must take all reasonable steps compatible with circumstances to protect the interest of the absent person until the property of the absent person is delivered to any person as to be ordered by the court. Section 60. The provisions concerning Agency of this Code shall be applied to the property management of the absent person mutatis mutandis . Section 61. If a person has left his domicile or residence and it has been uncertain for five years whether he is living or dead, the court may, on the application of any interested person or of the public prosecutor, adjudge that such person has disappeared. The period of time under paragraph one shall be reduced to two years;
Section 62. A person against whom an adjudication of disappearance has been made is deemed to have died at the completion of the period specified in Section 61. Section 63. If it is proved by the person adjudged disappearance, any interested person or of the public prosecutor that the person who disappeared is living, or that he died at a time different from that specified in Section 62, the court must, upon the application of the said person, revoke the adjudication; but this does not affect the validity of acts done in good faith between the adjudication and the revocation. Section 64. The adjudication of disappearance and its revocation shall be published in the Government Gazette. (up) CHAPTER II JURISTIC PERSONS PART I General Provisions Section 65. A juristic person can come into existence only by virtue of this Code or of other law. Section 66. A juristic person has rights and duties conformity with the provisions of this Code or of other law within the scope of its power and duties, or its object as provided by or defined in the law, regulation or constitutive act. Section 67. Subject to Section 66, a juristic person enjoys the same rights and is subject to the same duties as a natural person, by reason of their nature , may only be enjoyed or incurred only by a natural person. Section 68. The domicile of a juristic person is the place where it has its principal office or establishment, or which has been selected as a special domicile in its regulation or constitutive. Section 69. In the case where a juristic person has several establishments or has its branch office, the place of its branch office may also be considered its domicile as to acts there performed. Section 70. A juristic person must have one or several representatives as prescribed by the law, regulations or its constitutive act, decisions as to the affairs of juristic persons are made by a majority of the representatives. Section 71. In the case where a juristic person has several representatives, if it is not otherwise provided by the law, or defined in regulations or constitutive act, decisions as to the affairs of juristic person are made by a majority of representatives. Section 72. The change of representatives of juristic person or of any restriction, or modification of the power of representatives shall be effective after having complied with the law, regulations or its constitutive act, but cannot be set up against third person acting in good faith. Section 73. If a vacancy occurs among the representatives of juristic person, and there is reason to believe that damage might ensue from delay, the Court may, on the application of any interested person or of the Public Prosecutor, appoint a temporary representative. Section 74. In a matter in which the interested of a juristic person conflict with those of the representative of juristic person, the latter has no representative power. Section 75. If, in the case under Section 74, it causes a non-existence of the representatives of juristic person, or number of the remaining representatives cannot constitute quorum of the meeting or is sufficient to execute such matter, if it is not otherwise provided by the law, or defined in its regulations or constitutive act, the provisions of Section 73 shall apply to the appointment of special representatives, 'mutatis mutandis'. Section 76. A juristic person is bound to make compensation for any damage done to other persons by its representatives or the person empowered to act on behalf of the juristic person in the exercise of their functions, saving its right of recourse against the causers of the damage. If damage is done to other persons by an act which is not within the scope of the object or power and duties of the juristic person, all the persons as mentioned in paragraph one who agreed such act or executed it, are jointly liable to make compensation. Section 77. The provisions on Agency of this Code shall apply to the relationship between the juristic persons and its representatives, and between the juristic person or its representative and third persons, ‘mutatis mutandis'. (up) SamuiForSale PART II Association Section 78. An association created for conducting any activity which, according to its nature, is to be done continuously and collectively by persons other than that of sharing profits or incomes earned, must have its regulations and must be registered according to the provisions of this Code Section 79. The regulations must at least have the following particulars:
Section 81. The application for registration of an association must be filed jointly in writing by at least three of the would-be members of the association with the Registrar of the area where the principal office of the association is situated, and regulations of the association, list of names, addresses and occupations of at least ten would-be members of the association are to be attached to the application. Section 82. When the application for registration together with the regulations are received by the Registrar and the application is found correct under Section 81 and the regulations are correct under Section 79, the object of the association is not contrary to the law or good moral or endangering public order or national security and all particulars contained in the application or in the regulations conform the object of the association, or the would-be directors of the association have status or conduct suitable for implementing the object of the association, the Registrar shall make registration and issue a certificate of registration to the association. The registration shall be published in the Government Gazette. It is found that the application or the regulations are not in conformity with Section 81 or Section 79, the particulars contained in the application or in the regulations do not conform to the object of the association, or would-be directors of the association do not have the status and conduct suitable for implementing the object of the association, the Registrar shall instruct the applicant to make correction or alteration, and shall, after the correction or alteration having been made, make registration and issue a certificate of registration to the association. If it is considered by the Registrar that the registration cannot be made because the object of the association is contrary to the law or good moral or likely to endanger public order or national security, or the applicant fails to make correction or alteration as such within thirty days from the day of which the instruction of the Registrar came to his knowledge, the Registrar shall give and order refusing the registration and inform the applicant without delay of reasons for such refusal. The applicant is entitled to appeal in writing against the order of refusal for registration to the Minister of Interior through the Registrar within thirty days from the date of receipt of the refusal order. The Minister of Interior shall decide the appeal and inform the appellant of the decision within thirty days from the date of receipt of the written appeal by the Registrar. The decision of the Minister of Interior shall be final. Section 83. The association so registered is a juristic person. Section 84. No alterations of and additions to the regulations of an association may be made, except by a resolution of the general meeting. Such alterations and additions must be deposited for registration at the Registrar Office where the principal office of the association is situated within fourteen days from the date of the resolution, and the provisions of Section 82 shall apply, mutatis mutandis. It shall become effective after the registration thereof by the Registrar. Section 85. The appointment of new directors of the association of the alteration thereof shall be made in accordance with the regulations of the association and must be registered by the Registrar at the Registrar Office where the principal office of the association is situated within thirty days from the date of such appointment or alteration of the directors of the association. If it is considered by the Registrar that any of the directors under paragraph one does not have status or conduct suitable for implementing the object of the association, the Registrar may refuse the registration of that director of the association. In case of refusal, the Registrar shall notify the association of reason for such refusal within sixty days from the date of application, and the provisions of Section 82 paragraph four and paragraph five shall apply, mutatis mutandis. If the registration of new directors of the association has not yet been made, the old directors of the association shall further perform the functions of the directors of the association until the registration of the new directors of the association is made, unless otherwise provided in the regulations of the association. Section 86. The directors of the association is to carry on the activities of the association under the law and the regulations of the association, and under supervision of the general meetings. Section 87. An association is represented in its relations with third persons by its committee. Section 88. All activities performed by the Committee of the association are valid even though it appears afterwards that there is any fault concerning the appointment or qualification of the directors of the association. Section 89. A member of an association is entitled during working hours of the association inspect the business and property of the association. Section 90. A member of the association has to pay total subscription on the day when he applies for being member or at the beginning of the period for payment of subscription, unless otherwise provided in the regulations. Section 91. A member of the association is entitled to withdraw at any time from the association, unless otherwise provided in the regulations. Section 92. Each member of an association is liable to the debt of the association for not more than the amount of the subscription due by him. Section 93. A general meeting shall be called by the directors of the association at least once a year. Section 94. The Committee of the association may summon extraordinary meetings as they think fit. A requisition for summoning an extraordinary meeting may be made in writing by members of not less than one-fifth of the whole members of the association, or of not less than one hundred, or of not less than the number set forth in the regulations to the Committee of the association. The requisition must specify the object for which the meeting is required to be summoned. When the Committee of the association have received the requisition for the summoning of an extraordinary meeting under paragraph two, they shall summon such meeting within thirty days from the date of receipt of the requisition. If the meeting is not summoned within the period of time under paragraph three, the members who have made the requisition for summoning such extraordinary meeting or other members of not less that the number set forth in paragraph to may summon the meeting by themselves. Section 95. In summoning a general meeting, a notice for the meeting shall be sent not later than seven days before the date fixed for the meeting to every member whose name appears in the register of the association, or may be published at least twice in a prevailing local paper, not less than seven days before the date of the meeting. The notice must specify the place, the day and the hour of the meeting as well as its agenda, and closely relevant details and documents shall also be sent. As for a summoning of the extraordinary meeting through a publication, the said details and documents must be provided and ready for distributing to the member who request therefore at the place fixed by the person summoning such meeting. Section 96. In a general meeting of the association, members present at the meeting of not less than one-half of the total number of members shall constitute a quorum, unless provisions on a quorum of the meeting in the regulations of the association are otherwise provided. If the quorum so provided is not present, the general meeting, if summoned upon requisition of members, shall be dissolved. But if the general meeting had not been summoned upon the requisition of members, another general meeting shall be summoned by the Committee within fourteen days from the date of the fist summoned meeting and at such later meeting no quorum shall be necessary. Section 97. Decision of the meeting shall be by majority of votes, except in the case where a particular majority of votes is specially provided in the regulations of the association. Each member shall have one vote. In case of an equally of votes, the chairman of the meeting shall have an additional vote as casting vote. Section 98. Any member may vote by proxy, unless otherwise provided in the regulations of the association. Section 99. Any director or any member of an association who has in a resolution an interest in conflict with an interest of the association cannot vote in such resolution. Section 100. I any general meeting has been summoned or held or a resolution passed contrary to the regulations of the association or the provisions of this Title, any such member or the public Prosecutor may apply to the Court for cancellation of the resolution of such general meeting, provided that the application is entered within one month after the date of the resolution. Section 101. An association is dissolve:
Section 102. The Registrar shall have the power to give an order to have the name of an association struck off the register in the following cases:
Section 103. After the name of any association has been struck off the register by the order of the Registrar under Section 102, the Registrar shall send to order together with its reason to the association without delay, and shall publish such dissolution in the Government Gazette. Any director or member of the association of not less than three in number are entitled to appeal against the order of the Registrar given under paragraph one to the Minister of Interior. The appeal must be in writing and sent to the Registrar within thirty days from the date of being informed of the order, and provisions of Section 82 paragraph five shall apply, mutatis mutandis. Section 104. When a case under Section 102 happens, an interested person may request the Registrar to have the name of the association struck off the register. If the Registrar fails to comply with the request and does not inform the person who made the request of the reasons within a reasonable period of time, or the reason given by the Registrar are not satisfied by the person having made the request, he may apply to the Court for dissolution of the association. Section 105. When an association is to be dissolved under Section 101 (1) (2) (3) or (4), the Committee of the association that holds the office at the time of dissolution of the association shall inform the Registrar of the dissolution within fourteen days from the date of such dissolution. In case where an association is declared bankrupt by a final judgment or order of the Court under Section 101 (5), or is dissolved by a final order under Section 104, the Court shall notify the Registrar of the said judgment or order. The Registrar shall publish such dissolution in the Government Gazette. Section 106. Upon dissolution of an association, the liquidation of the association shall be made, and the provisions in Book III, Title 22 on Liquidation of Registered Partnerships, Limited Partnerships and Limited Companies shall apply to the liquidation of the association, mutatis mutandis. Section 107. After liquidation, the remaining assets, if any, cannot be distributed among the members of the association. They shall be transferred to such other association or foundation, or any juristic person whose object is of charity purposes as may be designated in the regulations, by the resolution of the association in general meeting. If no transferee of the said assets has been designated, by the regulations or by the resolution of association in general meeting, or if designated but it is unable to comply therewith, the remaining assets shall belong to the State. Section 108. Any person may, on application to the Registrar, inspect the documents relating to an association kept by the Registrar or request for certified copies of the said documents to be delivered to him by the Registrar, and Registrar, and the Registrar shall comply therewith after payment of such fee as may be prescribed by the Ministerial Regulations has been made. Section 109. The Minister of Interior shall take charge and control of the execution of the provisions of this Part and have the power to appoint the Registrar and to issue Ministerial Regulations on:
Such Ministerial Regulations Shall become effective upon their publication in the Government Gazette. (up) PART III Foundation Section 110. A foundation consists of property specially appropriated to public charity, religious, art, scientific, education or other purpose for the public benefit and not for sharing profit, and has been registered under the provisions of this Code. The property of a foundation must be managed for implementing the objects of that foundation, and not for seeking interest for any person. Section 111. A foundation must have its regulations and must have a Committee, consisting of at least three persons, to conduct business of the foundation according to the law and regulations of the foundation. Section 112. The regulations must have at least the following particulars:
Section 113. The foundation must have a word ‘foundation' incorporated with its name. Section 114. The application for registration of a foundation must be filed in writing with the Registrar of the area where the principal office of the foundation is situated, and it must at least specify the owner of the property and the list of the property appropriated for the foundation together with the list of names, addresses and occupation of all the would-be directors of the foundation, including the regulations of the foundation. Section 115. When the application for registration together with the regulations are received by the registrar, and the application is found correct under Section 114 and the regulations correct under Section 112, the objects of the foundation are not contrary to the law or good moral or endangering public order or national security and all particulars contained in the application or in the regulations conform to the objects of the foundation, or the would-be directors of the foundation have status or conduct suitable for implementing the objects of the foundation, the registrar shall make registration and issue a certificate of registration to the foundation The registration shall be published in the Government Gazette. If it is found that the application or the regulations are not in conformity with Section 114 or Section 112, the particulars contained in the application or in the regulations do not conform to the object of the foundation, or the would-be directors of the foundation do not have status and conduct suitable for implementing the object of the foundation, the registrar shall instruct the applicant to make correction or alteration, and shall, after the correction or alteration having bee made, make registration and issue a certificate of registration to the foundation. If it is considered by the registrar that the registration cannot be made because the objects of the foundation are contrary or the law or good moral or likely to endanger public order or national security, or the applicant fails to make correction or alteration as such within thirty Thailand Civil and Commercial Code days counting from the day on which the instruction of the registrar came to his knowledge, the registrar shall give an order refusing the registration and inform the applicant without delay of reasons for such refusal. The applicant is entitled to appeal in writing against the order of refusal for registration to the Minister of Interior through the registrar within thirty days from the date of receipt of the refusal order. The Minister of Interior shall decide the appeal and inform the appellant of the decision within thirty days from the date of receipt of the written appeal by the registrar. The decision of the Minister of Interior shall be final. Section 116. Before the registration of the foundation being made by the registrar, the applicant for creating a foundation is entitled to withdraw the application by submitting a written notice to the registrar. The right to withdraw the application does not devolve on the heirs. In the case where the application for establishment of the foundation is made by many persons, if it is withdrawn by any applicant, it shall become extinguished. Section 117. If the applicant for creating t he foundation dies before the registration by the registrar, and the deceased does not make a will revoking the application for creation of such foundation, the application shall be effective and be proceeded on with the creation of such foundation by the heirs or administrator, or the person entrusted by the deceased. If the said person fails to proceed with the matter within one hundred and twenty days from the death of the applicant for creation of the foundation, any interested person or the public prosecutor may proceed with the matter in the capacity of the applicant. If the foundation cannot be created in accordance with the objects set by the deceased and no testamentary disposition is provided otherwise, the provisions of Section 1679 paragraph two shall be applied mutatis mutandis. If proceeding under Section 1679 paragraph two cannot be made or the foundation cannot be created under Section 115, the appropriated property shall be vested in the estate of the deceased. Section 118. If there is a testamentary disposition to create a foundation under Section 1676, the person charged with the duty to create the foundation under Section 1677 paragraph one shall precede with the matter under Section 114 and under provisions of this Section. If the person charged with the duty to create the foundation under paragraph one fails to apply for registration to effect the creation of the foundation within one hundred and twenty days from the date that the testamentary disposition to create the foundation came to or should have come to knowledge of the said person, any interested person or the public prosecutor may apply for such registration. If the applicant for registration of the foundation fails to make modifications or alterations in compliance with the instruction, any interested person or the public prosecutor may apply for such registration again. If a protest is made to the registrar on the ground that the w ill does not provide for creating the foundation, the registrar shall notify the protestor to make a request to the court within sixty days counting from the date he has been notified by the registrar, and the registrar shall not consider the registration but wait for the judgment or order of the court and comply therewith. If the protester fails to make the request to the court within the time limit, the registrar shall further consider the registration of the foundation. Section 119. If the will that contains the testamentary disposition does not have such particulars as provided in Section 112 (1) (3) (5) or (6), the applicant under Section 118 can stipulate the said particulars. If any interested person makes a protest against the applicant, the registrar shall give an order as he thinks fit and notify the applicant and the protester of the order, he can file a protest with the court within sixty days count ing from the date of receipt of the notification from the registrar. The registrar shall not consider the registration but wait for the judgment or order of the court and comply therewith. If no protest is filed within the time limit, the registrar shall consider the registration according to the order given. Section 120. If there are many applicants for registration of the foundation under the will of the same de cujus, and the applications contradict each other, the registrar shall summon the applicants for making an agreement. If the applicants do not show up or cannot come to an agreement within a period of time fixed by the registrar, the registrar shall give an order as he thinks fit, and the provisions of Section 119 shall be applied mutatis mutandis. Section 121. After registration of the foundation, if the applicant for creating the foundation is still alive, the property appropriated therefore shall vest in the foundation from the date of registration of the foundation by the registrar. If the applicant for creating a foundation dies before the registration of the foundation by the registrar, the property appropriated therefore shall vest in the foundation from the death of the applicant after the registration. Section 122. The foundation so registered is a juristic person. Section 123. A foundation is represented in its relations with third persons by its committee. Section 124. All activities performed by the committee of the foundation are valid even though it appears afterwards that there is any fault concerning the appointment or qualification of directors of the foundation. Section 125. The appointment of new directors of the foundation or the alteration thereof shall made in accordance with the regulations of the foundation and must be registered within thirty days counting from the date of such appointment or alteration of the directors of the foundation. If it is considered by the registrar that any of the directors under paragraph one does not have status or conduct suitable for implementing the objects of the foundation, the registrar may refuse the registration of the director. In case of refusal, the registrar shall notify reasons of the foundation for such refusal within sixty days counting from the date of application, and the provisions of Section 115 paragraph four and paragraph five shall be applied mutatis mutandis. In the case where the directors of the foundation vacate their office and no director is remaining or the remaining directors are unable to perform their function, the director who has vacated his office shall, if no regulations of the foundation provides, perform further the function of director until the foundation is notified by the registrar of the registration of the new director. The director who has vacated his office on dismissing account by the order of the court under Section 129 cannot perform his function under paragraph three. Section 126. Subject to Section 127, the committee of the foundation is empowered to amend the regulations of the foundation. If the rules and manners for the amendment have been provided in the regulations of the foundations, the amendment must be made according to those provided in the regulations and it shall be deposited for registration at the registrar office within thirty days counting from the date of amendment by the committee of the foundation, and the provision of Section 115 shall be applied mutatis mutandis. Section 127. The amendment of any particulars in the regulations of the foundation under Section 112 (2) can be made only for the following purposes:
Section 128. The registrar shall has the power to inspect, control and supervise the carrying on of activities of the foundation t be in conformity with the law and the regulations of the foundation. For this purpose, the registrar or any competent officials entrusted by the registrar in writing shall have power;
In performing the duty under paragraph one, the registrar shall produce his identity card while the entrusted competent officials have to produce to any concerned person their identity cards and a letter of power of the registrar. Section 129. Any director who causes an injury to the foundation through his wrongful performance of activities or performs the activities contrary to the law or the regulations of the foundation, may application of the registrar, the public prosecutor or of any interested person, be dismissed from being director of the foundation by the court. If the performance of activities under paragraph one is of the committee of the foundation or the objects of the foundation are not implement without reasonable causes by the committee, the court may, on application of the registrar, the public prosecutor or of any interested person, give an order dismissing the committee from the office. In case of dismissal of any director or of the committee of the foundation by the court under paragraph one or paragraph two, the court may appoint order or a committee in place of a director or the committee of the foundation so dismissed and registrar shall make registration of the person who has been appointed as director of the foundation by the court. Section 130. A foundation is dissolved;
Section 131. On the application of the registrar, the public prosecutors or of any interested person, the court may order a foundation t o be dissolved in the following cases; (1) It appears that the objects of the foundation are contrary to the law. Section 132. When a case under Section 130 (1) (2) or (3) happens, the committee of the foundation that holds the office at the time of dissolution of the foundation shall notify the registrar of the dissolution within forty days counting from the date of its dissolution. If the court passes a final judgment or gives a final order to effect to foundation to become bankrupt under Section 130 (4), or gives a final order to dissolve the foundation under Section 131, the court shall also notify the registrar of the said judgment or order. The registrar shall publish the dissolution of the foundation in the Government Gazette. Section 133. Upon dissolution of the foundation, the liquidation of the foundation shall be made, and the provisions in Book III, Title 22 on Liquidation of Registered Partnerships, Limited Partnerships and Limited Companies shall be applied to the liquidation of the foundation mutatis mutandis. To this effect, the report on the liquidation shall be submitted to the registrar by the liquidator and it shall be approved by the registrar. Section 134. After liquidation, the remaining assets shall be transferred to such foundation or juristic person whose object is in conformity with Section 110 as specified in the regulations, the public prosecutor, the liquidator or any interested person may apply to the court for appropriating the assets to other foundation or juristic person whose object is closely similar to that of such foundation. If the foundation is dissolved by the order of the court under Section 131 (1) or (2) or the appropriation of the assets under paragraph one cannot be made, the assets of the foundation shall vest in the State. Section 135. On the application to the registrar, any person may access to the documents relating to a foundation kept by the registrar or request for certified copies of the said documents and the registrar shall comply therewith after payment of such fee as prescribed by the Ministerial Regulations. Section 136. The Minister of Interior shall take charge and control of the execution of the provisions of this Part and have the power to appoint the registrar and issue Ministerial Regulations on;
Such Ministerial Regulations shall become effective upon their publication in the Government Gazette.
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TITLE III
THINGS
Section 137. Things are corporeal objects. Section 138. Property includes things as well as incorporeal objects, susceptible of having a value and of being appropriated. Section 139. Immovable property denotes land and things fixed permanently to land or forming a body therewith. It includes real rights connected with the land or things fixed to or forming a body with land. Section 140. Movable property denotes things other than immovable property. It includes rights connected therewith. Section 141. Divisible things are those which can be separated into real and distinct portions, each forming a perfect whole. Section 142. Indivisible things are those which cannot be separated without alteration in its substance as well as those which are considered indivisible by law. Section 143. Things outside of commerce are things incapable of appropriation, and those legally inalienable. Section 144. A component part of a thing is that which, according to its nature or local custom, is essential to its existence and cannot be separated without destroying, damaging or altering its form or nature. The owner of a thing has ownership in all its component parts. Section 145. Trees when planted for an unlimited period of time are deemed to be component parts of the land on which they stand. Trees which grow only for a limited period of time and crops which may be harvested one or more times a year are not component parts of the land. Section 146. Things temporarily fixed to land or to a building do not become component parts of the land or building. The same rule applies to a building or other structure which, in thee exercise of a right over another person's land, has been fixed to the land by the person who has such right. Section 147. Accessories are movable things, which are, according to the usual local conception or clear intention of the owner of the principal thing, attached to such thing permanently for its management, use or preservation, and, by connection, adjustment or otherwise, brought by the owner into the relation with the principal thing, in which it must serve the principal thing. Even though an accessory is temporarily served from the principal thing, it does not cease to be an accessory. Saving special disposition to the contrary, the accessory follows the principal thing. Section 148. By fruit of a thing is a natural fruit and legal fruit. Natural fruit denotes that which is a natural offspring of and is obtained from a thing in the normal possession or in the use thereof; and it is capable of acquisition at the time when it is severed from the thing. Legal fruit denotes a thing or other interest obtained periodically by the owner from another person for the use of the thing; it is calculated and may be acquired day by day or according to a period of time fixed.
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(up) TITLE VI JURISTIC ACTS CHAPTER I GENERAL PROVISIONS Section 149. Juristic act are voluntary lawful acts, the immediate purpose of which is to establish between persons relations, to create, modify, transfer, preserve or extinguish rights. Section 150. An act is void if its object is expressly prohibited by law or is impossible, or is contrary to public order or good morals. Section 151. An act is not void on account of its differing from a provision of any law if such law does not relate to public order or good moral. Section 152. An act which is not in the form prescribed by law is void. Section 153. An act which does not comply with the requirements concerning capacity of person is voidable. CHAPTER II DECLARATION OF INTENTION Section 154. A declaration of intention is not void on the ground that the declarant in the recesses of his mind does not intended to be bound by his expressed intention, unless this hidden intention was known to the other party. Section 155. A declaration of intention made with the connivance of the other party which is fictitious is void; but its invalidity cannot be set up against third persons injured by the fictitious declaration of intention and acting in good faith. If a declaration of fictitious intention under paragraph one is made to conceal another juristic act, the provisions of law relating to the concealed act shall apply. Section 156. A declaration of intention is void if made under a mistake as to an essential element of the juristic act. The mistake as to an essential element of the juristic act under paragraph one are for instance a mistake as to a character of the juristic act, a mistake as to a person to be a partner of the juristic act and a mistake as to a property being an object of the juristic act. Section 157. A declaration of intention is voidable if made under a mistake as to a quality of the person. Mistake under paragraph one must be a mistake as to the quality of the person which is considered as essential in the ordinary dealings, and without which such juristic act would have not been made. Section 158. If the mistake under Section 156 or Section 157 was due to the gross negligence of the person making such declaration, he cannot avail himself of such invalidity. Section 159. A declaration of intention produced by fraud is voidable. An act under paragraph one is voidable on account of fraud only when it is such that without which such juristic act would not have been made. When a party has made a declaration of intention owing to a fraud committed by a third person, the act is voidable only if the other party knew or ought to have known of the fraud. Section 160. The avoidance of a declaration of intention produced by fraud cannot be set up against a third person acting in good faith. Section 161. If the fraud is only incidental that is to say it has merely induced a party to accept more onerous terms than would otherwise have done, such party can only claim compensation for damage resulting from such fraud. Section 162. In bilateral juristic acts, the intentional silence of one of the parties in respect to a fact or quality of which the other party is ignorant, is deemed to be a fraud if it is proved that, without it, the act would not have been made. Section 163. If both parties acted with fraud, neither of them can allege it to void the act or to claim compensation. Section 164. A declaration of intention is voidable if made under duress. Duress, in order to make an act voidable, must be imminent and so severe that makes him fear and without it, the act would not have been made. Section 165. The threat of the normal exercise of a right is not considered duress. Any act made owning to reverential fear is not considered an act made under duress. Section 166. Duress vitiates the juristic act, even when it is exercised by a third person. Section 167. In determining a case of mistake, fraud or duress, the sex, age, position health, temperament of the person made the intention and all other circumstances and environment which may relate to that act shall be taken into consideration. Section 168. A declaration of intention made to a person in his presence takes effect from the time when it becomes known to the receiver of the intention. This also apply to the declaration of intention made by one person to the other through telephone, other communication devices, or other means through which similar communication can be made. Section 169. A declaration of intention made to a person not in his presence takes effect from the time when it reached the receiver of the intention. If does not become effective if a revocation reaches him previously or simultaneously. Even though the person who made a declaration of intention dies, becomes incompetent or quasi-incompetent by an order of the Court after it has been sent, the validity of declaration is not impaired thereby. Section 170. If the declaration of intention is made to a minor or a person adjudged incompetent or quasi-incompetent, it cannot be set up against him unless his legal representative, guardian or curator, as the case may be, has knowledge of it or has given prior consent to it. The provisions of paragraph one do not apply to the declaration of intention concerning any matter that the minor or the incompetent is required by law to make by himself. Section 171. In the interpretation of a declaration of intention, the true intention is to be sought rather than the literal meaning of the words or expressions. CHAPTER III VOID AND VOIDABLE ACTS Section 172. A void act cannot be ratified, and its nullity may be alledged at any time by any interested person. The return of a property arising from a void act shall be governed by the provisions on Undue Enrichment of the Code. Section 173. If any part of an act is void the whole act is void, unless it may be assumed under the circumstances of the case that the parties intended the valid part of the act to be separable from the invalid part. Section 174. If a void act complies with the requirements of another act which is not void, it is valid as the other act, if it may be assumed that such validity would have been intended by the parties, had they known of the invalidity of the intended act. Section 175. A voidable act may be avoided by:
If the person who did the voidable juristic act dies before making the avoidance, it may be avoided by his heir. Section 176. When a voidable act is avoided, it is deemed to have been void from the beginning; and the parties shall be restored to the condition in which they were previously, and if it is not possible to so restore them, they be indemnified with an equivalent. If any person knew or ought to have known that an act is voidable, he, after making the avoidance, is deemed to have known that the act is void since the voidable act became known or ought to become known to him. The claim resulting from restoring them to the previous condition under paragraph one cannot be exercised later than one year from the date of avoidance of the voidable act. Section 177. If any person entitled to avoid a voidable act under Section 175 ratifies a voidable act, it is deemed to have been valid from the beginning; but the right of third persons cannot be affected thereby. Section 178. The avoidance of or ratification to a voidable act could be made by a declaration of intention made to the other party who is a determinate person. Section 179. A ratification is valid only if it is made after the state of facts forming the ground of voidability has ceased to exist. When a person adjudged incompetent or quasi-incompetent or a person of unsound mind who did a voidable juristic act under Section 30 acquires knowledge of such act after he has recovered his capacity, he can ratify it only after acquiring knowledge. The heir of the person having done the voidable juristic act can ratify such act after the death of such person unless the right to avoid the voidable juristic act of the deceased has extinguished. The provisions of paragraph one and paragraph two shall not apply to a ratification to the voidable juristic act made by the legal representative, guardian or curator. Section 180. If after the time when ratification according to Section 179 could be made, any of the following facts takes place in regard to a voidable act by an act of the person entitled to avoid the voidable act under Section 175, it is deemed to be ratified, unless a reservation is expresses, such as:
Section 181. A voidable act cannot be avoided later than one year from the time when ratification could have been made, or later than ten years since the act was done. CHAPTER IV CONDITIONS AND TIME Section 182. A clause which subordinates the effect or the end of the effect of a juristic act to a future and uncertain event, is considered a condition. Section 183. A juristic act subject to a condition precedent takes effect when the condition is fulfilled. A juristic act subject to a condition subsequent ceases to have effect when the condition in fulfilled. If the parties to the act have declared an intention that the effect of the fulfillment of a condition shall relate back to a time before its fulfilled, such intention is to govern. Section 184. Any party to a juristic act subject to a condition must not, while the condition is pending, do any thing by which the benefit which the other party might derive from the fulfillment of the condition impaired. Section 185. The rights and duties which the parties have, while the condition is pending, may be disposed of, inherited, protected or secured according to law. Section 186. If the fulfillment of a condition is prevented not in good faith by the party to whose disadvantage it would operate, the condition is deemed to have been fulfilled. If the fulfillment of a condition is brought about in bad faith by the party to whose advantage it would operate, the condition is deemed not to have been fulfilled. Section 187. When the condition is already fulfilled at the time of the juristic act, the latter is unconditionally valid, if the condition is precedent, and is void, if the condition is subsequent. When it is already certain at the time of the juristic act that the condition cannot be fulfilled, the act is void, if the condition is precedent, and unconditional valid, if the condition is subsequent. The parties still have rights and duties according to Section 184 and Section 185 so long as they do not know whether the condition is fulfilled under paragraph one or cannot be fulfilled under paragraph two. Section 188. A juristic act is void if it is subject to an unlawful condition, or a condition contrary to public order or good morals. Section 189. A juristic act upon a condition precedent which is impossible is void. A juristic act upon a condition subsequent which is impossible is unconditionally valid. Section 190. A juristic act upon a condition precedent which depends upon the will of the debtor is void Section 191. If a time of commencement is annexed to a juristic act, its performance cannot demanded before such time arrives.
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If a time of ending is annexed to a juristic act, its effect ceases when such time arrives. Section 192. It is presumed that a time of commencement or ending is fixed for the benefit of the debtor, unless it appears from the tenor of the instrument or from the circumstances of the case that it was intended for the benefit of the creditor, or of both parties. The benefit of such a time may be waived, but this will not affect any benefit which would accrue there from to the other party. Section 193. In the following cases the debtor cannot take advantage of a time of commencement or ending:
(up) TITLE V PERIODS OF TIME Section 193/1. The manner of computing all periods of time is governed by the provisions of this Title, unless it is otherwise provided by law, by juridical order, by rules and regulations or by a juristic act. Section 193/2. A period of time is calculated by day. But if it is determined shorter than a day, it shall calculated as such. Section 193/3. If the period of time is determined shorter than a day, it begins to run at once. When a period of time is determined days, weeks, months or years, the first day of the period is not included in the calculation, unless the period begins to run on that day from the time which is customary to commence business. Section 193/4. As far as the legal proceedings, official business or commercial and industrial business are concerned, a day means working hours determined by law, by a judicial order or by rules and regulations, or usual working hours of that business, as the case may be. Section 193/5. The period determined in weeks, months or year are calculated according to the calendar. If the period is not computed from the beginning of a week, month or year , it ends on the day preceding that day of the last week, month or year which corresponds to that on which it began. If a period measured in months or years there is no corresponding day in the last month, the last day of such month shall be the day of ending. Section 193/6. If a period of time is determined in months and days, or in months and a part of a month, a full month shall be first measured and then a number of days or a part of a month measured in days. If a period of time is determined in a part of a year, the part of a year shall be first measured in months and a part of a month, if any, shall be measured in days. In calculating a part of a month under paragraph one and paragraph two, thirty days is regarded one month. Section 193/7. If a period of time is extended and no beginning day of the extension is determined, the first day of the extension is the day following the last day of the original period. Section 193/ 8. If the last day of a period is a holiday according to an official notification or a custom on which no business is done, the period includes the next working day. ---------------- (up) TITLE VI PRESCRIPTION CHAPTER I GENERAL PROVISIONS Section 193/9. A claim is barred by prescription if it has not been enforced within the period of time fixed by law. Section 193/10. After the lapse of the period of prescription for claims, the debtor is entitled to refuse performance. Section 193/11. The periods for prescription fixed by law cannot be extended or reduced. Section 193/12. Prescription begins and run from the moment when the claim can be enforced. If the claim is to a forbearance, prescription begins to run from the moment when the right is fist infringed. Section 193/13. If the creditor may not demand performance until he has given notice to the debtor, prescription begins to run from the moment when notice can be first given. If the debtor is not bound to perform until a given period has elapsed since the notice, prescription begins to run from the expiration of this period. Section 193/14. Prescription is interrupted if:
Section 193/15. When prescription is interrupted , the period of time which has elapsed before interruption does not count for prescription. A fresh period of prescription begins to run from the time when the interruption ceases. Section 193/16. The creditor of an obligation for the payment of money periodically is entitled to require from the debtor, at any time before the completion of the period of prescription, a written acknowledgment of the obligation in order to obtain evidence of the interruption of prescription. Section 193/17. In the case where prescription is interrupted due to the case under Section 193/ 14 (2), if the Court has passed a final judgment to dismiss the action, or the action has terminated and has been disposed of on the ground of being withdrawn or abandoned, the prescription shall be deemed to have never been interrupted. In the case where the Court refuses to accept, return or dismisses the action on the ground of want of jurisdiction, or the action is dismissed with the right to re-enter the action in Court and the period of prescription expired pending proceedings, or would have expired within sixty days from the date of final judgment or order, the creditor shall be entitled to enter an action in Court for establishing his claim or for requiring performance of the obligation within sixty days from the date of final judgment or order. Section 193/18. The provisions of Section 193/17 shall apply, mutatis mutandis, to interruption of prescription due to the case under Section 193/14 (3), (4) and (5). Section 193/19. If at any time when the prescription would end, the creditor is prevented by force majeure from effecting a interruption, the prescription is not completed until thirty days after the time when such force majeure has ceased to exist. Section 193/20. If prescription of claim of a minor, or a person of unsound mind whether adjudged incompetent or not, would have expired while the said person does not acquire full capacity, or within one year from the day when the said person is without a legal representative or a guardian, if is not completed until the expiration of one year after he has acquired full capacity or has a legal representative or guardian, as the case may be. If the period of prescription of the claim is shorter than one year, the shorter period of time shall apply in place of the said period of one year. Section 193/21. If prescription of claim of a minor, an incompetent or a quasi-incompetent against his legal representative, guardian or curator would have expired while the said person does not acquire full capacity, or within one year from the day when the said person is without legal representative, guardian or curator, if is not completed until the expiration of one year after he has acquired full capacity or has a legal representative, guardian or curator, as the case may be. If the period of prescription of the claim is shorter than one year, the shorter period of time shall apply in place of the said period of one year. Section 193/22. If prescription of claims between spouses would have expired before within one year after dissolution of marriage, it is not completed until the expiration of one year after dissolution of marriage. Section 193/23. If prescription of a claim existing in favour of or against a deceased would have expired within one year after the date of the death, the period of prescription is not completed until the expiration of one year after death. Section 193/24. The benefit of prescription can be waived only after it has been completed, but such waiver does not prejudice the right of third persons, or the surety. Section 193/25. When prescription is completed, its effect relates back to the day when it began to run. Section 193/26. With the principal claim the claims for accessory acts of performance dependent upon it are also barred by prescription, even if the particular prescription applying to the accessory claim is not yet complete. Section 193/27. The barring of the principal claim by prescription does not prevent a mortgagee, a pledge, holder of a right of retention or a creditor who has preferential right on property of the debtor detained by him, to enforce his right out of the mortgaged, pledged or detained property. But in exercising the right the creditor cannot obtain more than five years for arrears of interest. Section 193/28. If any act of performance is done in satisfaction of a claim barred by prescription, the value of such performance may not be demanded back, even if the performance has been effected in ignorance of the prescription. The provisions of paragraph one shall apply to a contractual acknowledgment of liability in writing and to the giving of security by the debtor, but it cannot be referred against the former surety. Section 193/29. When prescription has not been set up as a defense, the Court cannot dismiss the claim on the ground of prescription. CHAPTER II PERIOD OF PRESCRIPTION Section 193/30. The period of prescription for which no other period is provided by law is ten years. Section 193/31.The period of prescription for claims of the Government for taxes and rates is ten years. As to other claims of the Government relating to obligations, the provisions of this title shall apply. Section 193/32. The period of prescription for a claim established by a final judgment, or by a contract of compromise is ten years, even if the claim itself is subject to any period of prescription. Section 193/33. The period of prescription is five years for the following claims:
Section 193/34. The period of prescription is two years for the following claims:
Section 193/34. The period of prescription is two years for the following claims:
Section 193 /35. Subject to Section 193/27, prescription of claims arising from the acknowledgment of liabilities by the debtor in writing or in giving of security under Section 193/28 paragraph two is two year from the date of acknowledgment of liabilities or of giving of security. SamuiForSale (up) --------------- BOOK II OBLIGATIONS TITLE I GENERAL PROVISIONS CHAPTER I SUBJECT OF OBLIGATIONS Section 194. by virtue of an obligation the creditor is entitled to claim performance from the debtor. The performance may consist in a forbearance. Section 195. When the thing which forms the subject of an obligation is described only in kind, if its quality cannot be determined by the nature of the juristic act or the intention of the parties, the debtor must deliver a thing of medium quality. If the debtor has done every thing required on his part for the delivery of such thing, or if he on obtaining the consent of the creditor has designated a thing for delivery, such thing becomes from that time the subject of the obligation. Section 196. If a money debt is expressed in a foreign currency, payment may be made in Thai currency. The commutation is made according to the rate of exchange current in the place of payment at the time of payment. Section 197. If a money debt is payable in a specific kind of money which is no longer current at the time of payment, the payment shall be as if the kind of money were not specified. Section 198. If several acts of performance are due in such manner that only one of them is to be done, the right to elect belongs to the debtor unless otherwise stipulated. Section 199. The election is made by a declaration of intention to the other party. The performance elected is deemed to be the only one due from the beginning. Section 200. If the election is to be made within a period of time, and the party who has the right of election does not exercise it within such period, the right of election passes to the other party. If no period of time was fixed, when the obligation becomes due, the party who has not the right of election can notify the other party to exercise his right of election within a reasonable time to be fixed in such notice. Section 201. If a third person is to make the election, it is done by a declaration of intention made to the debtor, who must inform the creditor. If such third person cannot make the election or is unwilling to do so, the right of election passes to the debtor. Section 202. If one of the acts of performance is impossible from the beginning, or if it subsequently becomes impossible, the obligation is limited to the other act of performance. This limitation does not arise if the performance becomes impossible in consequence of a circumstance for which the party not entitled to elect is responsible. CHAPTER II EFFECT OF OBLIGATIONS PART I Non-Performance Section 203. If a time for performance is neither fixed nor to be inferred from the circumstances, the creditor may demand the performance forthwith, and the debtor may perform his part forthwith. If a time is fixed, it is to be presumed, in case of doubt, that the creditor may not demand the performance before that time; the debtor, however, may perform earlier. Section 204. If the debtor does not perform after warning given by the creditor after maturity, he is in default through the warning. If a time by calendar is fixed for the performance, the debtor is in default without warning if he does not perform at the fixed time. The same rule applies if a notice is required to precede the performance, and the time is fixed in such manner that it may be reckoned by the calendar from the time of notice. Section 205. The debtor is not in default so long as the performance is not effected in consequence of a circumstance of a circumstance for which he is not responsible. Section 206. In obligations arising from an unlawful act, the debtor is in default from the time when he committed it. Section 207. a creditor is in default if, without legal ground, he does not accept the performance tendered to him. Section 208. The performance must be actually tendered to the creditor in the manner which it is to be effected. But if the creditor has declared to the debtor that he will not accept performance, or if for effecting the performance an act of the creditor is necessary, it is sufficient for the debtor to give him notice that all preparations for performance have been made and that it is for him to accept it. In such cases the notice by the debtor is equivalent to a tender. Section 209. If a time certain is fixed for the act to be done by the creditor, tender is required only if the creditor does the act in due time. Section 210. If the debtor is bound to perform his part only upon counter performance by the creditor, the creditor is in default if, though prepared to accept the performance tendered, he does not offer the required counter-performance. Section 211. A creditor is not in default if the debtor is not in a position to effect the performance at the time of tender, or, in the case provided by Section 209, at the time fixed for the act of the creditor. Section 212. If the time of performance is not fixed, or if the debtor is entitled to perform before the fixed time, the creditor is not in default by reason of the fact that he is temporarily prevented from accepting the tendered performance, unless the debtor has given him notice of this intended performance a reasonable time beforehand. Section 213. If a debtor fails to perform his obligation, the creditor may make a demand to the Court for compulsory performance, except where the nature of the obligation does not permit it. When the nature of an obligation does not permit of compulsory performance, if the subject of the obligation is the doing of an act, the creditor may apply to the court to have it done by a third person at the debtor's expense; but if the subject of the obligation is doing of a juristic act, a judgment may be substituted for a declaration of intention by the debtor. As to an obligation whose subject is the performance from an act , the creditor may demand the removal of what has been done at the expense of the debtor and have proper measures adopted for the future. The provisions of the foregoing paragraphs do not affect the right to claim damages. Section 214. Subject to the provisions of Section 733, the creditor is entitled to have his obligation performed out of the whole of the property of his debtor including any money and other property due to the debtor by third person. Section 215. When the debtor does not perform the obligation in accordance with the true intent and purpose of the same, the creditor may claim compensation for any damages caused thereby. Section 216. If by a reason of default, the performance becomes useless to the creditor, he may refuse to accept it and claim compensation for non-performance. Section 217. A debtor is responsible for all negligence during his default. He is also responsible for impossibility of performance arising accidentally during the default, unless the injury would have arises even if he had performed in due time. Section 218. When the performance becomes impossible in consequence of a circumstance for which the debtor is responsible, the debtor shall compensate the creditor for any damage arising from the non-performance. In case of partial impossibility the creditor may, by declining the still possible part of the performance, demand compensation for non-performance of the entire obligation, if the still possible part of performance is useless to him. Section 219. The debtor is relieved from his obligation to perform if the performance becomes impossible in consequence of a circumstance, for which he is not responsible, occurring after the creation of the obligation. If the debtor, after the creation of the obligation, becomes unable to perform, it is equivalent to a circumstance rendering the performance impossible. Section 220. A debtor is responsible for the fault of his agent, and of person whom he employs in performing his obligation, to the same extent as for his own fault. In such case the provisions of Section 373 have no application. Section 221. A money debt bearing interest ceases to bear interest during the default of the creditor. Section 222. The claim of damages is for compensation for all such damage as usually arises from non performance. The creditor may demand compensation even for such damage as has arisen from special circumstances, if the party concerned foresaw or ought to have foreseen such circumstances. Section 223. If any fault of the injured party has continued in causing the injury, the obligation to compensate the injured party and the extent of the compensation to be made depends upon the circumstances, especially upon how far the injury has been caused chiefly by the one or the other party. This applies also even if the fault of the injured party consisted only in an omission to call the attention of the debtor to the danger of an unusually serious injury which the debtor neither knew not ought to have known, or in an omission to avert or mitigate the injury. The provisions of Section 220 apply mutatis mtandis. Section 224. A money dent bears interest during default seven and half percent per annum. If the creditor can demand higher interest on any other legitimate ground, this shall continue to be paid. Interest for default shall not be paid upon interest. Proof of further damage is admissible. Section 225. If the debtor is bound to make compensation for the value of an object which has perished during the default, or which cannot be delivered for a reason which has arisen during the default, the creditor may demand interest on the amount to be paid as compensation, from the time which serves as the basis for the estimate of the value. The same rule applies if the debtor is bound to make compensation for the diminution in value of an object which has deteriorated during the default. PART II Subrogation Section 226. A person is subrogated to the rights of a creditor is entitled to exercise in his own name all the rights which the creditor had in respect of the obligation including any security for it. By real subrogation, a property is substituted for another property in the same juristic position as the previous one.
Section 227. When a creditor has received as compensation for damage the full value of the thing or right which is the subject of the obligation, the debtor is, by operation of law, subrogated into the position of the creditor with regard to such thing or right.
Section 228. If, in consequence of the circumstance which makes the performance impossible, the debtor acquires a substitute or a claim for compensation for the object owed, the creditor may demand delivery of the substitute received or may claim for compensation by himself.
If the creditor has a claim for compensation on account of non-performance, the compensation to be made to him is diminished, if he exercises the right specified in the foregoing paragraph, by the value of the substitute received or of the claim for compensation.
Section 229. Subrogation takes place by operation of law and ensues to the benefit of the following persons:
Section 230. If the creditor levies compulsory execution upon an object belonging to the debtor, any person who through the execution incurs danger of losing a right in the object is entitled to satisfying the creditor. The same right belongs to the possessor of a thing if he incurs danger of losing possession through the execution.
If a third person satisfies the creditor he is subrogated of the claim of the latter. Such claim may not be enforced to the detriment of the creditor.
Section 231. If properties mortgaged, pledged or otherwise subject to a preferential right, are insured, the mortgage, pledge or other preferential right extends to the claim against the insurer.
In case of immovable property, the insurer shall not pay the indemnity to the assured until he has given notice of his intention to do so to the mortgagee or other preferred creditor, and has not within one month from such notice received any objection to the payment, provided always that the insurer knew or ought to have known of the mortgage or other preferential right; however, any right registered in the Land Registry is deemed to be known to the insurer.
The same rule shall apply to mortgage of movables allowed by law. In case of movable property, the insurer may pay the indemnity to the assured directly, unless he knew or ought to have known of the pledge or other preferential right.
The insurer is not liable to the creditor if the insured property is restored or a substitute for it is provided.
The same rule shall be applied mutatis mutandis in case of expropriation as well as in case of indemnity due to the owner of the property for destruction or damage.
Section 232. If under the foregoing section a sum of money is being substituted for the property destroyed or damaged, such sum shall in no case be delivered to the mortgage, pledge or other preferred creditor before the obligation secured is due, and if the parties cannot come to an agreement with the debtor, each of them is entitled to demand that the said sum be deposited at the Deposit Office their common benefit unless the debtor gives proper security.
PART III
Exercising Debtor’s Claims
Section 233. If, to the prejudice of the creditor, the debtor refuses or neglects to exercise a claim the creditor may, in order to protect his obligation, exercise such claim in his own name of behalf of the debtor, except those which are purely personal to the debtor.
Section 234. The creditor who exercises a claim belonging to his debtor must summon the debtor to appear in the action.
Section 235. A creditor may exercise a claim belonging to the debtor for the whole amount due to the debtor, without regard to the amount due to him. But the defendant may satisfy the creditor by paying the amount due to him alone, provided that if the original debtor has joined as a plaintiff he may proceed to judgment for the balance.
In any case the creditor cannot obtain more than what is due to him.
Section 236. The defendant may set up against the creditor all defenses which he may have against the debtor, excepting those which arose after the entry of the action.
PART IV Cancellation of fraudulent acts Section 237. The creditor is entitled to claim cancellation by the Court of any juristic act done by the debtor with knowledge that it would prejudice his creditor; but this does not apply if the person enriched by such act did not know, at the time of the act, or the facts which could make it prejudicial to the creditor, provided, however, that in case of gratuitous act the knowledge on the part of the debtor alone is sufficient. The provisions of the foregoing paragraph do not apply to a juristic act whose subject is not a property right. Section 238. The cancellation under the foregoing section cannot affect the right of a third person acquired in good faith. The foregoing paragraph does not apply if the right is acquired gratuitously. Section 239. Cancellation operates in favour of all the creditors. Section 240. A claim for cancellation cannot be brought later than one year from the time when the creditor knew of the cause of cancellation, or later than ten years since the act was done. PART V Section 241. If the possessor of a property belonging to another has an obligation in his favour relating to the property possessed, he may retain the property until the obligation is performed; but this does not apply, if the obligation is not yet due. The provisions of the forgoing paragraph do not apply, if the possession begins by an unlawful act. Section 242. The right of retention does not exist if it is incompatible with the obligation assumed by the creditor, or with the instructions given by the debtor before or at the time of delivery of the property or if it is against public order. Section 243. In case of insolvency of the debtor, the creditor has the right of retention even if his claim is not yet due. If the insolvency has occurred or become known to the creditor after the delivery of the property, he can exercise the right of retention even if an obligation previously assumed by him or the instruction given by the debtor, opposes it. Section 244. The holder of a right of retention may exercise his right against the whole of the property retained until the obligation is wholly performed. Section 245. The holder of a right of retention may take the fruits of the property retained and appropriate them to the performance of the obligation in preference to other creditors. Such fruits must first be appropriated to the interest on the obligation, and if there is any surplus must be appropriated to the principal. Section 246. The holder of a right of retention is bound to take such appropriate care of the property retained as might be expected from him in his situation. The holder of a right of retention cannot use or let the property retained or give it as security, without the consent of the debtor; but this does not apply to such use as is necessary for the preservation of the property. If the holder of a right of retention acts contrary to any provision of the foregoing paragraphs, the debtor may claim the extinction of the right. Section 247. If the holder of a right of retention incurs necessary expenses in respect to the property retained he may require the owner to reimburse him. Section 248. Subject to the provisions of Section 193/27, the exercise f a right of retention does not prevent the running of prescription against the obligation. Section 249. The debtor may claim the extinction of the right of retention on giving proper security. Section 250. A right of retention is extinguished by the loss of possession of the property; but this does not apply to the case where the property retained is let or pledged with the consent of the debtor. PART VI Section 251. A holder of a preferential right has, according to the provisions of this Code or other laws, a right as to the property of his debtor to receive therefrom performance of an obligation due to him in preference to other creditors. Section 252. The provisions of Section 244 apply correspondingly to preferential rights. 1. General Preferential Rights Section 253. A person in whose favour an obligation exist based upon any of the following grounds has a preferential right in the whole property of the debtor: (1) Expenses for the common benefit Section 254. The preferential right on account of expenses for the common benefit is for expenses incurred for the common benefit of all the creditors in regard to preservation , liquidation or distribution of the debtor’s property. If any such expense was not incurred for the benefit of all the creditors, the preferential right only exist against those creditors for whose benefit it was incurred. Section 255. The preferential right on account of funeral expenses is for such funeral expenses as are accordant to the station in life of the debtor. Section 256. The preferential right on account of taxes and rates is for all land, property or other taxes or local rates due from the debtor for the current year and the preceding year. Section 257. The preferential right on account of money, to which an employee is entitled for services rendered to the debtor who is his employer, is for basic pay, overtime pay, holiday pay, holiday overtime pay, severance pay, special severance pay, and other money to which the employee is entitled for services rendered to, for four months back not exceeding one hundred thousand baht for each employee. Section 258. The preferential right on account of supplies of the daily necessaries is for supplies for six months back of food, drink, light, firewood and charcoal, necessary for the living of the debtor, of members of his family, who live with him and whom he is bound to support, and of his servants. 2. Special Preferential Rights (a) PREFERENTIAL RIGHTS IN MOVABLES Section 259. A person in whose favour an obligation exists based upon any of the following grounds has a preferential right in particular movables of the debtor: (1) Hiring of an immovable. Section 260. The preferential right on account of the hiring of an immovable is for the hire of the immovable and for other obligations of the hired arising from the relation of hiring, and is in the movables of the hirer which are in or on the immovable. Section 261. The preferential right of the letter of land is in such movables as have been brought by he hirer upon the land hired or into buildings subservient to the use of such land, in such movables as are destined for the use of such land and in such fruits of the land as are in the possession of the hirer. The preferential right of the letter or a building is in such movables as have been brought into the building by the hirer. Section 262. If a hirer of immovable property is transferred or sublet, the preferential right of the original letter extends to the movables brought by the transferee or sub-hirer into the property. The same applies to the money which the transferor or the sub-letter is to receive from the transferee or sub-hirer. Section 263. In case of a general liquidation of the property of the hirer, the preferential right of the letter is only for the rent and other obligations of the last preceding, the current and the next following rent period and for such damages as have arisen during the last preceding and the current rent period. Section 264. If the letter has received security money, he has a preferential right only with regard to that part of his claim which is not covered by the security money. Section 265. The preferential right on account of lodging in an inn is for what is due to the proprietor for lodging and other services afforded to the traveler or guest in satisfaction of his needs, including disbursements, and is in the luggage or other property of the traveler or guest which is in the inn, hotel or other such place. Section 266. The letter of an immovable property or the proprietor of an inn, hotel or other such place may enforce his preferential right in the same manner as a pledgee. The provisions of this Code concerning Enforcement of Pledge apply mutatis mutandis. Section 267. The preferential right on account of carriage is for charges for the carriage of a passenger or goods and for accessory expenses, and is in all goods and luggage in the hands of the carrier. Section 268. The letter of an immovable, the proprietor of an inn, or the carrier may enforce his preferential right against movables belonging to a third person in the case contemplated in the preceding eight sections, unless he knew in due time that they belong to the third person. If such movables have been stolen or lost the provisions of the law concerning recovery of possession shall apply. Sections 269. The preferential right on account of the preservation of a movable is for the expense of the preservation of movable, and is in such movable. The preferential right exists also for necessary expenses incurred for the purpose of having a right relating to a movable preserved, acknowledged or enforced. Section 270. The preferential right on account of the sale of a movable is for the price and interest thereon, and is in such movable. Section 271. The preferential right on account of the supply of seeds, young plants or manure is for the price of seeds, young plants or manure and interest thereon, and is in the fruits which have grown on the land for which those things have been used within one year after their use. Section 272. The preferential right on account of agricultural and industrial services is as to the person who rendered agricultural service for wages fro one year back, and as to a person who rendered industrial services for wages for three months back, and is in the fruits or manufactured things produced by his service. (b) PREFERENTIAL RIGHTS IN IMMOVABLES Section 273. A person in whose favor an obligation exists based upon any of the following grounds has a preferential right in a particular immovable of the debtor: (1) Preservation of an immovable Section 274. The preferential right on account of the preservation of an immovable is for the expense of preservation of an immovable, and is in such immovable. In case of the foregoing paragraph the provisions of Section 269 paragraph 2 apply correspondingly. Section 275. The preferential right on account of work done upon an immovable is for charges for the work done upon an immovable of the debtor by a builder an architect or a contractor, and is in such immovable. This preferential right exist only if there is a present increase of the value of such immovable due to such work, and is only in such increased value. Section 276. The preferential right on account of the sale of an immovable is for the price and interest thereon, and is in such immovable. 3. Rank of Preferential Rights Section 277. When general preferential rights conflict, the rank of their precedence is according to the order in Section 253. When a preferential right conflicts with a special preferential right, the latter takes precedence, but the preferential rights on account of expenses for the common benefit takes precedence as against all creditors who are benefited thereby. Section 278. When preferential rights in the same movable conflict, the rank of their precedence is as follows. (1) The preferential right on account of the hiring of an immovable, of lodging in an inn and of carriage. If a person who has a preferential right of the first rank knew at the time when he acquired his obligation that other persons have preferential rights of the second or third rank, he cannot exercise his right of precedence against them. The same applies as against a person who has preserved a thing for the benefit of a person having a preferential right of the first rank. As to fruits, a person who rendered agricultural services has the first rank, a supplier of seeds, young plants or manure the second, and the letter of the land third. Section 279. When special preferential rights in the same immovable conflict, the rank of their precedence is according to the order in Section 273. In successive sales have been made of the same immovable, the rank of precedence of the seller as between themselves is according to the priority of the sales. Section 280. When several persons have preferential rights of the same rank in the same thing, each is to receive performance in proportion to the amount of his obligation. 4. Effect of Preferential rights Section 281. A preferential right in a movable cannot be exercised after the debtor has delivered the thing to a third person who has acquired it from him. Section 282. When a preferential right conflicts with a pledge of a movable, the pledgee has the same rights as the holder of a preferential right of the first rank mentioned in Section 278. Section 283. A person who has a general preferential right must receive performance first out of the movable property of the debtor, and only in case that is insufficient he can receive performance out of immovables. If a person who has a general preferential right negligently omits to intervene in a distribution according to the provisions of the foregoing two paragraphs, he cannot exercise his preferential right against a third person whose right is registered, to the extent of what he would have received through such intervention. The provisions of the foregoing three paragraphs do not apply, if the proceeds of an immovable are to be distributed before those of other property, or if the proceeds of an immovable which is the subject of a special security are to be distributed before the proceeds of other immovables. Section 284. A general preferential right, even though not registered in respect to an immovable, may be set up against any creditor who has no special security, but this does not apply against a third person who made registration. Section 285. A preferential right on account of the preservation of an immovable retains its effect by being registered immediately after the act of preservation is completed. Section 286. A preferential right on account of work done upon an immovable retains its effect by a provisional estimate of the cost being registered before the work has begun. If, however, the costs of the work exceeds the provisional estimate, there is no preferential right for the excess. The increase of value of an immovable arising from the work done upon it is to be estimated by experts appointed by the Court at the time of the intervention in the distribution. Section 287. A preferential right registered in accordance with the provisions of the preceding two sections can be exercised in preference to a mortgage. Section 288. A preferential right on account of the sale of an immovable retains its effect by registering at the same time with the contract of sale the fact that the price or the interest thereon has not been paid. Section 289. As to the effect of a preferential right, in addition to provisions of Sections 281 to 288 inclusive, the provisions as to Mortgage apply correspondingly. (up) --------------- CHAPTER III PLURALITY OF DEBTORS AND CREDITORS Section 290. If several persons owe a divisible performance, or if a divisible performance is owed to several persons, each debtor is, in case of doubt liable only for an equal share, and each creditor is entitled to an equal share. Section 291. If several persons owe an act of performance in such manner that each is bound to effect the whole performance, though the creditor is entitled to obtain the whole performance only once (i.e. joint debtors), the creditor may demand the performance at his option from any one of the debtors, in the whole or in part. Untill the whole performance has been effected all of the debtors remain bound. Section 292. Performance of the obligation by one joint debtors operates in favour of the other debtors. The same rule applies to any act in lieu of performance, to the deposit of lieu of performance and to set off. A claim belonging to one of the joint debtors may not be set off by the other debtors. Section 293. A release of the obligation granted to one of the joint debtors avails for the benefit of the other debtors only in respect of the share of the debtor who has been released unless otherwise agreed. Section 294. The default of the creditor towards one joint debtor avails also in favour of the other debtors. Section 295. Facts other than those specified in Sections 292 to 294 avail, unless the contrary appears from the nature of the obligation, in favour of and as against only the joint debtor to whom they particularly refer. This applies, in particular, to the giving of notice, default, imputability of fault, impossibility of performance on the part of one joint debtor, prescription or its interruption, and merger of the claim in debt. Section 296. As between themselves joint debtors are liable in equal shares, unless it is otherwise provided. If from one of the joint debtors the contribution due from him cannot be obtained, the deficiency shall be borne by the other debtors who are bound to make contribution; provided that one of the joint debtors has been released from joint obligation, the creditor takes upon himself that share which the debtor released by him ought to have born. Section 297. If in a contract several persons bind themselves in common to effect a performance, they are liable, in case of doubt, as joint debtors even in the case of a divisible performance. Section 298. If several persons are entitled to demand an act of performance in such manner that each can demand the whole performance, though the debtor is bound to effect the whole performance only once (i.e. joint creditors), the debtor may at his option perform in favour of any one of the creditors. This applies even if one of the creditors has already brought an action for the performance. Section 299. Default on the part of one joint creditor avails also against the other creditors. If a claim and a debt become merged in one joint creditor, the rights of the other creditors against the debtor are extinguished. For the rest the provisions of Sections 292, 293 and 295 apply mutatis mutandis. In particular, if one joint creditor transfers his claim to another person, the rights of the other creditors remain unaffected. Section 300. Joint creditors are, as between themselves, entitled to equal shares, unless it is otherwise provided. Section 301. If several person owe an indivisible performance, they are liable as joint debtors. Section 302. If an indivisible performance is owed to several persons, and if they are not joint creditors, the debtor may only perform in favour of all in common, and each creditor may only demand the performance in favour of all. Each creditor may demand that the debtor deposits the thing owed for the benefit of all the creditors, or if the thing is not suitable to be deposited, that it be consigned to a custodian appointed by the Court. For the rest a fact which refers only to one creditor does not avail in favour of nor as against the other creditors. CHAPTER IV TRANSFER OF CLAIMS Section 303. A claim may be transferred , unless its nature does not admit of it. The provisions of the foregoing paragraph do not apply, if the parties have declared a contrary intention. Such declaration of intention, however, cannot be set up against a third person acting in good faith. Section 304. A claim is not transferable if it is not subject to judicial attachment. Section 305. With the transferred claim the rights of mortgage or pledge existing on its account and the rights, arising from a suretyship established for it, pass to the transferee. The transferee may also enforce any preferential right connected with the claim in case of compulsory execution or bankruptcy. Section 306. The transfer of an obligation performable to a specific creditor is not valid unless it is made in writing. It can be set up against the debtor or third person only if a notice thereof has been given to the debtor, or if the debtor has consented to the transfer. Such notice or consent be in writing. The debtor is discharged if he satisfies the transferor by way of payment or otherwise before he has received notice of, or has agreed to, the transfer. Section 307. If a right is claimed under different transfers, the first transfer notified, or agreed to, shall be preferred. Section 308. If a debtor has given the consent mentioned in Section 306 without reservation, he cannot set up against the transferee a defense which he might have made against the transferor. If, however, in order to extinguish the obligation, the debtor has made any payment to the transferor, he may recover it, or if for such purpose he has assumed an obligation to the transferor, he may treat it as if it did not exist. If the debtor has only received a notice of the transfer, he may set up against the transferee any defense which he had against the transferor before he recieved such notice. If the debtor had against the transferor a claim not yet due at the time of the notice, he can set off such claim provided that the same would become due not later than the claim transferred. Section 309. The transfer of an obligation performable to order can be set up against the debtor or other third person only if the transfer is indorsed on the instrument, and the instrument itself is delivered to the transferee. Section 310. The debtor of an obligation performable to order has the right, but is not bound, to verify the identity of the holder of the instrument or the genuineness of his signature or seal; but if the debtor acts in bad faith or with gross negligence, his performance is invalid. Section 311. The provisions of the foregoing section apply correspondingly, if a creditor is designated in the instrument, but it is added that performance shall e made to the holder of such instrument. Section 312. The debtor of an obligation performable to order cannot set up against any transferee in good faith defences which he might have set up against the original creditor, except such as appear on the face of the instrument or result naturally from its character. Section 313. The provisions of the foregoing section apply correspondingly to obligations performance to bearer. (up) CHAPTER V EXTINCTION OF OBLIGATION PART I Performance Section 314. Performance of an obligation may be made by any third person, unless its nature does not admit of it, or the parties concerned have declared a contrary intention. A person who has no interest in the performance, cannot make performance against the will of the debtor. Section 315. Performance must be made to the creditor or a person having authority to receive performance on his behalf. A performance made to a person who has no authority to receive is valid if the creditor ratifies it. Section 316. If performance is made to the apparent possessor of an obligation, it is valid only if the person making performance acted in good faith. Section 317. Except in the case mentioned in the foregoing section, a performance made to a person who is not entitled to receive it, is valid only to the extent to which the creditor has been enriched thereby. Section 318. A person who holds a receipt is deemed to have a right to receive performance; but this does not apply, if the person making performance knows that such right does not exist or is ignorant thereof by reason of his negligence. Section 319. When a third debtor who has been ordered by a Court to refrain from making performance, has made the same to his own creditor, the seizing creditor may, in so far as he has sustained damage, demand another performance from the third debtor. The provisions of the foregoing paragraph do not prevent the third debtor from exercising the right to recourse against his own creditor. Section 320. The creditor cannot be compelled to receive part performance or any other performance than that which due to him. Section 321. An obligation is extinguished if the creditor accepts in lieu of performance another performance than agreed upon. If the debtor, for the purpose of satisfying the creditor, assumes a new obligation towards him, is not to be presumed, in case of doubt, that he assumes the obligation in lieu of performance. If performance is made by making, transferring, or endorsing a bull or warrant, the obligation is extinguished only if such bill or warrant is paid. Section 322. If a thing, a claim against a third person or any other right is given in lieu of performance, the debtor shall be liable for defect and for eviction in the same manner as the seller. Section 323. If the subject of an obligation is the delivery of a specific thing, the person making performance must deliver the thing in connection in which it is at the same time when delivery is to be made. The debtor must, until he delivers it, keep the thing with such care as a person of ordinary prudence would take of his own property. Section 324. When there is no special declaration of intention as to the place of performance, if a specific thing is to be delivered, the delivery is to be made at the place where the thing was at the time when the obligation arose; other kinds of performance must be made at the place of the creditor's present domicile. Section 325. When there is no declaration of intention as to the expenses of performance, such expenses are to be borne by the debtor; if, however, because of the creditor's transfer of his domicile or any other act of his the expenses are increased, such increase must be borne by the creditor. Section 326. The person making performance is entitled to a receipt from the person who receives performance, and if the performance is wholly performed, he is entitled to have the document embodying the obligation surrendered to him or cancelled. If such document is declared to be lost, he is entitled to have the extinction of the obligation mentioned in the receipt or in a separate document. If the obligation is partly performed or if the document gives the creditor any other right, the debtor is only entitled to a receipt and to have the performance noted in the document. Section 327. In case of interest or other periodical performance, if the creditor gives a receipt for one term without any reservation, it is presumed that he has received performance for the previous terms. If he gives receipt for the capital, it is presumed that he has received the interest. If the document embodying the obligation has been surrendered, it is presumed that the obligation has been extinghuised. Section 328. If a debtor is bound to the creditor to do similar acts of performance by virtue of several obligations, and if the performance effected by him is insufficient for the discharge of all debts, that debt is discharged which he specifies on effecting the performance. If the debtor makes no specification, then that debt which is due is first discharged; among several debts due that one is first discharged which affords the creditor least security; among several equal secured debts the one most burdensome to the debtor; among several equally burdensome debts the oldest debt; and where several are equally old every debt proportionately. Section 329. If the debtor, besides the principal performance, has to pay interest and costs, the value of an act of performance sufficient to discharge the whole debt is applied first to the costs, then to the interest, and lastly to the principal performance.
Section 330. By proper tender of performance a discharge is effected, from the time of the tender, from all responsibilities arising out of non-performance.
Section 331. If the creditor refuses or is unable to accept performance, the person performing may be discharged from the obligation by depositing for the creditor's benefit the thing forming the subject of the obligation. The same applies, if the person performing without fault on his part, cannot ascertain the right or identity of the creditor. Section 332. If the debtor is bound to perform only after the counter-performance has been effected by the creditor, he may make the right of the creditor to receive the thing deposited dependent upon counter-performance by the creditor. Section 333. A deposit must be made to the deposit office or the place where the obligation is to be performed. If there are no special provisions by law or regulations as to the deposit offices, the Court must, on application of the person performing, designate a deposit office and appoint a custodian of the thing deposited. The depositor must without delay give notice of the deposit to the creditor. Section 334. The debtor has the right to withdraw the thing deposited. If he withdraws it, the deposit is deemed never to have been made. The right of withdrawal is barred: (1) If the debtor declares to the deposit office that he waives his right of withdrawal. (2) If the creditor declares his acceptance to the deposit office. (3) If the deposit has been ordered or confirmed by the Court and the fact is notified to the deposit office. Section 335. The right of withdrawal is not subject to judicial attachment. If bankruptcy proceedings are instituted against the property of the debtor, the right of withdrawal cannot be exercised during the bankruptcy proceedings. Section 336. If the thing forming the subject of performance is not suitable for deposit, or if in regard to the thing there is an apprehension that it may perish or be destroyed or damaged, the person performing may, with the permission of the Court, sell it at auction and deposit the proceeds. The same applies, if the keeping of the thing would be unreasonably expensive. Section 337. The auction is not permissible until after the creditor has been warned of it. The warning may be dispensed with if the thing is liable to deterioration, and there is danger in delaying the auction. The debtor shall without delay notify the creditor of the auction; if the debtor fails to do so, he is liable for compensation. The warning and the notice may be dispensed with if they are impracticable. The time and place of the auction, with a general description of the thing, shall be publicly advertised. Section 338. The cost of the deposit or of the auction shall be borne by the creditor, unless the deposit be withdrawn by the debtor. Section 339. The right of the creditor to the deposit is extinguished after the lapse of ten years since receipt of notice of the deposit. After the right of the creditor is extinguished the debtor is entitled to withdraw even if he has waived the right of withdrawal. (up) PART II Release
Section 340. If the creditor declares to the debtor an intention to release the obligation, it is extinguished.
When an obligation has been evidenced by writing, the release must also be in writing or the document embodying the obligation be surrendered to the debtor or cancelled.
PART III Set-off Section 341. If two persons are bound to each other by obligations whose subject is of the same kind and both of which are due, either debtor may be discharged from his obligation by set-off to the extent to which the amounts of the obligations correspond, unless the nature of one of the obligations does not admit of it. The provisions of the foregoing paragraph do not apply, if the parties have declared a contrary intention; but such intention cannot be set up against a third person acting in good faith. Section 342. Set-off is made by a declaration of intention by one party to another. A condition or time commencement or ending cannot be added to such declaration. The declaration of intention mentioned in the foregoing paragraph relates back in its effect to the time when both obligations could first have been set-off. Section 343. A set-off may be made even though the place of performance of the two obligations is different; but the party who makes the set-off must indemnify the other party for any damage caused thereby. Section 344. A claim against which there is a defense may not be set-off. Prescription does not exclude set-off, if the claim barred by prescription was not barred at the time at which it could have been set-off against the other claim. Section 345. If an obligation arises from an unlawful act, the debtor cannot avail himself of a set-off against the creditor. Section 346. If a claim is not subject to judicial attachment, it is not subject to set-off. Section 347. A third debtor who has received from the Court an order of prohibition of payment cannot set up against the seizing creditor an obligation subsequently acquired by him. Section 348. If either party has several claims suitable for set-off, the party making the set-off may specify the claims which are to be set-off against each other. If the set-off is declared without such specification, or if the other party objects without delay, provisions of Section 328 paragraph 2 apply mutatis mutandis. If the party making the set-off owes the other party interest and costs in addition to the principal performance, the provisions of Section 329 apply mutatis mutandis. (up) PART IV Novation Section 349. When the parties concerned have concluded a contract changing the essential elements of an obligation, such obligation is extinguished by novation. If a conditional obligation is made unconditional, or a condition is added to an unconditional obligation, or if a condition is changed, it is regarded as a change of an essential element of such obligation. A novation by a change of the creditor is governed by the provisions of this Code concerning transfer of claims. Section 350. A novation by a change of the debtor may be effected by a contract between the creditor and the new debtor, but this cannot be done against the will of the original debtor. Section 351. If the obligation resulting from a novation does not come into existence, or is annulled, because of an illegality in its ground or because of some reason unknown to the parties, the original obligation is not extinhuishe. Section 352. The parties to a novation may, to the extent of the subject of the original obligation, transfer a right of pledge or mortgage given as security for it to the new obligation; but if such security was given by a third person, his consent is necessary. PART V Merger Section 353. If rights and liabilities in an obligation become vested in the same person, the obligation is extinguished, except when it has become the subject of the right of a third person, or when a bill has been re-indorsed according Section 917 paragraph 3. (up) -------------- TITLE II CONTRACT CHAPTER I FORMATION OF CONTRACT Section 354. An offer to make a contract in which a period for acceptance is specified cannot be withdrawn within such period. Section 355. A person who, without specifying a period for acceptance, makes an offer to another at a distance cannot withdraw his offer within a time which notice of acceptance might reasonably be expected. Section 356. An offer made to a person who is present without specifying a period for acceptance may be accepted only there and then. This applies also to an offer made by one person to another on the telephone. Section 357. An offer ceases to be binding if it is refused to the offeror, or if it is not accepted in due time according to the three foregoing sections. Section 358. If the notice of acceptance arrives out of time, but it is apparent that it was sent in such manner that in the ordinary course of things it ought to have arrived in due time, the offeror, unless he has already done so, must without delay give notice to the other party of the delayed arrival. If the offeror fails to give notice mentioned in the foregoing paragraph, the notice of the acceptance is deemed not to have been out of time. Section 359. If the acceptance of an offer arrives out of time, it is deemed to be a new offer. An acceptance with additions, restrictions or other modifications is deemed to be a refusal coupled with a new offer. Section 360. The provisions of Section 169 paragraph 2 do not apply, if the offeror has declared a contrary intention, or if before accepting the other party had notice of the fact of his death or loss of capacity. Section 361. A contract between persons at a distance comes into existence at the time when the notice of acceptance reaches the offeror. In accordance to the declared intention of the offeror or to ordinary usage no notice of acceptance is necessary, the contract comes into existence at the time of the occurrence of fact which is considered as a declaration to accept. Section 362. A person who by advertisement promises that he will give a reward to whoever shall de a certain act is bound to give such reward to any person who does the act, even if such person did not act with a view to the reward. Section 363. In the case of the foregoing section the promisor may so long as there is no person who has completed the specific act, withdraw his promise by the same means which used for advertising, unless he declared in the advertisement that he would not withdraw it. If a promise cannot be withdrawn by the means of the aforesaid, withdraw may be made by other means, but in such case it is valid only against those persons who know of it. If the promisor has fixed a period within which the specified act must be done, he is presumed to have renounced his right of withdrawal. Section 364. If there are several persons who have done the act specified in the advertisement, only that one who does it first has a right to receive an equal share of the reward. If several persons do such act at the same time, each one has a right to receive an equal share of the reward. But if the reward is in its nature indivisible, or if by the terms of the promise only one person is to receive the reward, it is decided by lot. The provisions of the foregoing two paragraphs do not apply, if in the advertisement a different intention is declared. Section 365. A promise of reward which has a prize competition is valid only if a period of time is fixed in the advertisement. The decision whether any competitor fulfils the conditions of the promise within the period, or which one among several competitors deserves the preference, shall be made by the umpire named in the advertisement, or in the absence of any such, by the promisor of the reward. The decision is binding upon the parties concerned. In case of equality of merit the provisions of Section 364 paragraph 3 apply correspondingly. The transfer of ownership of the thing produced may be demanded by the promisor only of he has specified in the advertisement that such transfer shall be made. Section 366. So long as the parties have not agreed upon all points of a contract upon which, according to the declaration of even one party, agreement is essential, the contract is, in case of doubt, not concluded. An understanding concerning particular points is not binding, even if they have been noted down. If it is agreed that the contemplated contract shall be put into writing, in case of doubt, the contract is not concluded until it is put in writing. Section 367. If the parties to a contract, which they regarded as concluded, have in fact not agreed as to one point upon which an agreement was to be settled, those parts which were agreed upon are valid in so far as it may be inferred that the contract would have been concluded even without a settlement of this point. Section 368. Contracts shall be interpreted according to the requirements of good faith, ordinary usage being taken into consideration. CHAPTER II EFFECT OF CONTRACT Section 369. A party to a reciprocal contract may refuse to perform his obligation until the other party performs or tenders performance of his obligation. But this does not apply, if the other party's obligation is not yet due. Section 370. If the object of a reciprocal contract is the creation or transfer of a real right in a specific thing, and such thing is lost or damaged by a cause which is not attributable to the debtor, the loss or damage fails upon the creditor. To a non-specific thing the provisions of the foregoing paragraph apply from the time when the thing has become specific in accordance with the provisions of Section 195 paragraph 2. Section 371. The provision of the foregoing section do not apply, if the thing which forms the subject of a reciprocal contra depending upon a condition precedent is lost or destroyed while the condition is pending. If the thing is damaged by a cause not attributable to the creditor, the latter, when the condition is fulfilled, may at his option either demand performance with reduction of his counter performance or rescind the contract, provided that in the case where the cause of the damage is attributable to the debtor, the creditor's right to compensate is not affected thereby. Section 372. Except in the cases mentioned in the two foregoing sections, if an obligation becomes impossible of performance by a cause not attributable to either party, the debtor has no right to receive the counter performance. If performance becomes impossible by a cause attributable to the creditor, the debtor does not lose his right to the counter performance. He must however, deduct what he saves in consequence of release from the performance, or what he acquires or maliciously omits to acquire by a different application of his faculties. The same rule applies in the performance due from one party becomes impossible, in consequence of a circumstance for which he is not responsible, at the time when the other party is in default to acceptance. Section 373. An agreement made in advance exonerating a debtor from his own fraud or gross negligence is void. Section 374. If a party by a contract agrees to make a performance to a third person, the latter has a right to claim such performance directly from the debtor. In the case of the foregoing paragraph the right of the third person comes into existence at the time when he declares to the debtor his intention to take the benefit of the contract. Section 375. After the right of the third person has come into existence in accordance with the provisions of the foregoing section, it cannot be charged or extinguished by the parties to the contract. Section 378. Defences arising from the contract mentioned in Section 374 can be set up by the debtor against the third person who receive the benefit of the contract. CHAPTER III EARNEST AND STIPULATED PENALTY Section 377. If, on entering into a contract, something is given as earnest, this is deemed to be proof of the conclusion of the contract. I also serves as a security that the contract shall be performed. Section 378. In the absence of agreement to the contrary, earnest is:
Section 379. If the debtor promises the creditor the payment of a sum of money as penalty in case he does not perform it in the proper manner, the penalty is forfeited if he is in default. If the performance due consist in a forbearance, the penalty is forfeited as soon as any act in contravention of the obligation is committed. Section 380. If the debtor has promised the penalty for the case of his not performing his obligation, his creditor may demand the forfeited penalty in lieu of performance. If the creditor declares to the debtor that he demands the penalty, the claim for performance is barred. If the creditor has a claim for compensation for non-performance, he may demand the forfeited penalty as the minimum amount of the damage. Proof of further damage is admissible. Section 381. If the debtor has promised the penalty for the case of his not performing the obligation in the proper manner, such as, not at the fixed time, the creditor may demand the forfeited penalty in addition to the performance. If the creditor has a claim for compensation on account of improper performance, the Section 380 paragraph 2 apply. If the creditor accepts the performance he may demand the penalty only if on acceptance he reserves the right to do so. Section 382. If another performance than the payment of a sum of money is promised as penalty, the provisions of Sections 379 to 381 apply; the claim for compensation is barred if the creditor demands the penalty. Section 383. If a forfeited penalty is disproportionately high, it may be reduced to a reasonable amount by the Court. In determination of reasonableness every legitimate interest of the creditor, not merely his property interest, shall be taken into consideration. After payment of the penalty the claim for reduction is barred. The same rule applies also, apart from the cases provided for by Sections 379 and 382, if a person promises a penalty for the case of his doing or forbearing to do some act. Section 384. If the promises performance is invalid, an agreement made for a penalty for non-performance of the promise is also invalid, even if the parties knew of the invalidity of the promise. Section 385. If the debtor contests the forfeiture of the penalty on the ground of having performed his obligation, he must prove the performance, unless the performance due from him consisted in a forbearance. (up) CHAPTER IV RESCISSION OF CONTRACT Section 386. If by contract or by the provisions of law one party has the right of rescission, such rescission is made by a declaration of intention to the other party. The declaration of intention in the foregoing paragraph cannot be revoked. Section 387. If one part does not perform the obligation, the other party may fix a reasonable period and notify him to perform within that period. If he does not perform within that period, the other party may rescind the contract. Section 388. If the object of a contract according to its nature or to an intention declared by the parties can be accomplished only by performance at a fixed time or within a fixed period, and such time or period has passed without one of the parties having performed, the other party may rescind the contract without the notification mentioned in the foregoing section. Section 389. If performance becomes wholly or party impossible by a cause attributable to the debtor, the creditor may rescind the contract. Section 390. If in a contract there are several persons on the one or the other side, the right of rescission may be exercised only by all and against all. If the right of rescission is extinguished in respect of one of those persons entitled, also in respect of the others. Section 391. If one party has exercised his right of rescission, each party is bound to restore the other to his former condition; but the rights of third persons cannot be impaired. To money which is to be repaid in the case of the foregoing paragraph interest is to be paid from the time when it was received. For services rendered and for allowing the use of a thing the restitution shall be made by paying the value, or, if in the contract a counter-payment in money is stipulated for, this shall be paid. The exercise of the right of rescission does not affect a claim for damages. Section 392. The obligations of the parties resulting from rescission shall be performed according to the provisions of Section 369. Section 393. If no period is fixed for the exercise of the right of rescission, the other party may fix a reasonable period and notify the party having a right of rescission to declare within such period whether he will rescind or not. If notice of rescission is not received within such period, the right of rescission is extinguished. Section 394. The right of rescission is extinguished when the person entitled has, by his own act or fault, essentially damaged the thing which is the subject of a contract or has rendered the restitution thereof impossible or has charged into a thing of a different kind by working it up or remodeling it. If without the act or fault of the person who has the right of rescission the thing which is the subject of the contract of the contract has been lost or damaged, the right of rescission is not extinguished. TITLE III MANAGEMENT OF AFFAIRS WITHOUT MANDATE Section 395. A person who takes charge of an affair for another without having received mandate from him or being otherwise entitled to do so in respect of him, shall manage the affair in such manner as the interest of the principal requires, having regard to his actual or presumptive wishes. Section 396. If the undertaking of the management of the affair is opposed to the actual or presumptive wishes of the principal, and if the manager must have recognized this, he is bound to compensate the principal for any damages arising from his management of the affair, even if no fault otherwise imputable to him. Section 397. The fact that the management of the affair is opposed to the wishes of the principal is not taken into consideration if, without the management of the affair, a duty of the principal the fulfillment of which is of public interest or a legal duty to furnish maintenance to others by the principal would not be fulfilled in due time. Section 398. If the management of the affair has for its object the averting of an imminent danger which threatens the person, reputation or property of the principal, the manager is responsible only for willful default and gross negligence. Section 399. The manager shall notify to the principal, as soon as practicable, the undertaking of the management of the affair, and await his decision, unless there is danger in delay. For the rest the provisions of Sections 809 to 811 applicable to an agent apply mutatis mutandis to the obligation of the manager. Section 400. If the manager is incapacitated, he is responsible only under the provisions relating to compensation for wrongful acts, and relating tot the return for undue enrichment. Section 401. If the undertaking of management of the affair is in accordance with the interest and the actual or presumptive wishes of the principal, the manager may demand reimbursement of his outlay as an agent. The provisions of Section 816 paragraph 2 apply mutatis mutandis. In the case provided for by Section 397 this claim belongs to the manager even if the undertaking of the management of the affair is opposed to the wishes of the principal. Section 402. If the conditions of the foregoing section do not exist, the principal is bound to return to the manager all that he acquires through the management of the affair under the provisions relating to the return for undue enrichment. If the principal ratifies the management of the affair, the provisions of this Code concerning Agency apply mutatis mutandis. Section 403. The manager has no claim if he had not the intention to demand reimbursement from the principal. If parents or grandparents furnish maintenance to their descendants, or vice versa, it is to be presumed, in case of doubt, that there is no intention to demand reimbursement from the recipient. Section 404. If the manager acts for one person, believing that he is acting for another person, only the former has the right and duties arising out of the management. Section 405. The provisions of the ten foregoing sections do not apply, if a person takes charge of the affair of another in the belief that it is his own. If a person treats the affair of another as his own, although knowing that he is not entitled to do so, the principal may enforce the claims based on Sections 395, 396, 399 and 400. If he does enforce them, he is liable to the manager as provided for in Section 402 paragraph 1. (up) --------------- TITLE IV UNDUE ENRICHMENT Section 406. Any person who, through an act of performance made by another person or in any other manner, obtains something to the prejudice of such other person without legal ground, must return it to the latter. The acknowledgment of the existence or non-existence of a debt is deemed to be an act of performance. The same provision shall apply if something has been obtained on account of a cause which has not been realized or of a ceased to exist. Section 407. A person who has freely done an act as if in performance of an obligation, knowing that he was not bound to effect the performance, is not entitled to restitution. Section 408. The following persons are not entitled to restitution: A person who performs an obligation subject to a time clause before the time has arrived Section 409. When a person who is not a debtor has performed an obligation by mistake and the creditor, in consequence thereof, has in good faith destroyed or obliterated the documentary evidence of the obligation or given up any security or lost his right by prescription, the creditor is not bound to make restitution. The provisions of the foregoing paragraph do not prevent the person who has performed from exercising a right of recourse against the debtor and his surety, if any Section 410. A person who had made a performance for an intended result which is not produced is not entitled to restitution, if, from the beginning, it was known to him that the production of the result was impossible or if he was prevented the result in violation of good faith. Section 411. A person who has made an act of performance, the purpose of which is contrary to legal prohibition or good morals, cannot claim restitution. Section 412. If the property which was unduly received is a sum of money, restitution must be made in full, unless the person who received it was in good faith in which case he is only bound to return such part of his enrichment as still exists at the time when restitution is demanded. Section 413. When the property which must be returned is other than a sum of money and the person who received it was in good faith, such person is only bound to return it in such condition as it is and is not responsible for less or damage to such thing, but he must return whatever he has acquired as compensation for such loss or damage. If the person who received the property was in bad faith he is fully responsible for the loss or damage even caused by force majeur, unless he proves that the loss or damage would have happened in any case. Section 414. If restitution is impossible on account of the nature of the property received or for any other reason, and the person who received the property was in good faith, such person is bound only to return such part of his enrichment as still exists at the time when restitution is demanded. If a person who received the property was in bad faith, he is bound to pay the full value of the property. Section 415. A person who has received the property in good faith acquires the fruits thereon as long as such good faith continues. In case where he has to return such thing, he is deemed to be in bad faith from the time when restitution is demanded. Section 416. Expenses which were necessary for the preservation of the property or for its maintenance or repair must be reimbursed in full to the person who returns such property. However such person cannot claim reimbursement of the ordinary expenses for maintenance, repairs or charges made within the ime during which he has acquired the fruits. Section 417. For expenses other than those provided in paragraph 1 of the foregoing section the person who returns the property can claim reimbursement only if they were made while he was in good faith and if the value of the property is increased by such expenses at the time of restitution, and only to the extent of such increase. The provisions of Section 415 paragraph 2 apply correspondingly. Section 418. If the person who has in bad faith unduly received a property has made alternations in, or additions to it, he must return the property after having put it in its former condition at his own expense, unless the owner of the property chooses to have it returned in its present condition, in which case the owner must pay at his option either the cost of alterations or additions, or a sum representing the increased value of the property. When restitution is to be made, if it is impossible to put it in its former condition or the property would be damaged thereby, the person who received the property must return it in such condition as it is and he is not entitled to compensation for any increase of value accruing to the property from such alterations or additions. Section 419. No action on account of undue enrichment can be entered later than one year from the time when the injured party became aware of his right to restitution or later than 10 years from the time when the right accrued. (up) TITLE V WRONGFUL ACTS CHAPTER I LIABILITY FOR WRONGFUL ACTS Section 420. A person who, willfully or negligently, unlawfully injures the life, body, health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefore. Section 421. The exercise of a right which can only have the purpose of causing injury to another person is unlawful. Section 422. If damage results from an infringement of a statutory provision intended for the protection of others, the person who so infringes is presumed to be in fault. Section 423. A person who, contrary to the truth, asserts or circulates as a fact that which injurious to the reputation or the credit of another or his earnings or prosperity in any other manner, shall compensate the other for any damage arising therefrom, even if he does not know of its untruth, provided he ought to know it. A person who makes a communication the untruth of which is unknown to him, does not thereby render himself liable to make compensation, if he or the receiver of the communication has a rightful interest in it. Section 424. The Court, when given judgment as to the liability for wrongful act and the amount of compensation, shall not be bound by the provisions of the criminal law concerning liability to punishment or by the conviction or non-conviction of the wrongdoer for a criminal offence. Section 425. An employer is jointly liable with his employee for the consequences of a wrongful act committed by such an employee in the course of his employment. Section 426. The employer who has made compensation to a third person for a wrongful act committed by his employee is entitled to reimbursement from such employee. Section 427. The two foregoing sections shall apply mutatis mutandis to principal and agent. Section 428. An employer is not liable for damage done by the contractor to a third person in the course of the work, unless the employer was at fault in regard to the word ordered or to his instructions or to the selection of the contractor. Section 429. A person, even though incapacitated, on account of minority or unsoundness of mind is liable for the consequences of his wrongful act. The parents of such person are, or his guardian is, jointly liable with him, unless they or he can prove that proper care in performing their or his duty of supervision has been extended. Section 430. A teacher, employer or other person who undertakes the supervision of an incapacitated person either permanently or temporarily, is jointly liable with such person for any wrongful act committed by the latter whilst under his supervision, provided that it can be proved that he has not exercised proper care. Section 431. In case falling under the two forgoing sections the provisions of Section 426 apply mutatis mutandis. Section 432. If several persons by a joint wrongful act cause damage to another person, they are jointly bound to make compensation for the damage. The same applies if, among several joint doers of an act, the one who caused the damage cannot be ascertained. Persons who instigate or assist in a wrongful act are deemed to be joint actors. As between themselves the persons jointly bound to make compensation are liable in equal shares unless, under the circumstances, the Court otherwise decides. Section 433. If damage is caused by an animal, the owner, or the person who undertakes to keep the animal on behalf of the owner, is bound to compensate the injured party for any damage arising therefrom, unless he can prove that he has exercised proper care in keeping it according to its species and nature or other circumstances, or that the damage would have been occasioned notwithstanding the exercise of such care. The person responsible under the foregoing paragraph may exercise a right of recourse against the person who has wrongfully excited or provoked the animal or against the owner of another animal which has caused the excitement or provocation. Section 434. If damage is caused by reason of the defective construction or insufficient maintenance of a building or other structure, the possessor of such building or structure is bound to make compensation, but if the possessor has used proper care to prevent the happening of the damage, the owner is bound to make compensation. The provisions of the foregoing paragraph apply correspondingly to defects in the planting or propping of trees or bamboos. If in cases of the foregoing two paragraphs there is also some other person who is responsible for the cause of the damage, the possessor or owner may exercise a right of recourse against such person. Section 435. A person who is threatened with an injury from a building or other structure belonging to another is entitled to require the latter to make necessary measures for averting the danger. Section 436. An occupier of a building is responsible for damage arising from things which fall from it or are thrown into an improper place. Section 437. A person is responsible for injury caused by any conveyance propelled by mechanism which is in his possession or control, unless he proves that the injury results from force majeure or fault of the injured person. The same applies to the person who has in his possession things dangerous by nature of destination or on account of their mechanical action. CHAPTER II COMPENSATION FOR WRONGFUL ACTS Section 438. The Court shall determine the manner and the extent of the compensation according to the circumstances and the gravity of the wrongful act. Compensation may include restitution of the property of which the injured person has been wrongfully deprived or its value as well as damages for any injury caused. Section 439. A person who is bound to return a thing of which he has deprived another by a wrongful act is also responsible for the accidental destruction of the thing, or for accidental impossibility of returning it arising from any other cause, or for its accidental deterioration, unless destruction or the impossibility of returning it or the deterioration would have happened even if the wrongful act had not been committed. Section 440. If on account of the taking of a thing its value, or, on account of damage to a thing, its diminution in value is to be made good, the injured party may demand interest on the amount to be made good from the time which serves as the basis for the estimate of the value. Section 441. If a person bound to make compensation for any damage on account of the taking or damaging of a movable compensates the person whose possession the thing was at the time of taking or damage, he is discharged by so doing even if a third party was the owner of the thing, or had some other right in the thing, unless the right of the third party is known to him or remains unknown in consequence of gross negligence. Section 442. If any fault of the injured party has contributed in causing the injury, the provisions of Section 223 shall apply mutatis mutandis. Section 443. In the cause of casing death, compensation shall include funeral and other necessary expenses. If death did not ensue immediately, compensation shall include in particular expenses for medical treatment and damages for the loss of earning on account of disability to work. If on account of the death any person has been deprived of his legal support, he is entitled to compensation therefore. Section 444. In the case of an injury to the body or health, the injured person is entitled to receive reimbursement of his expenses and damages for total or partial disability to work, for the present as well as for the future. If at the time of giving judgment it is impossible to ascertain the actual consequences of the injury, the Court may reserve in the judgment the right to revise such judgment for a period not exceeding two years. Section 445. In the case of causing death, or of causing injury to the body or health of another, or in the case of deprivation of liberty, if the injured person was bound by law to perform service in favour of a third person in his household or industry, the person bound to make compensation shall compensate the third person for the loss of such service. Section 446. In the case of injury to the body or health of another, or in the case of deprivation of liberty, the injured person may also claim compensation for the damage which is not pecuniary loss. The claim is not transferable, and does not pass to the heirs, unless it has been acknowledged by contract, or on action on it has been commenced. Section 447. Against a person who has injured the reputation of another, the Court may, on the application of the injured person, or order proper measures to be taken for the rehabilitation of the latter's reputation, instead of, or together with, compensation damages. Section 448. The claim for damages arising from wrongful act is barred by prescription after one year from the day when the wrongful act and the person bound to make compensation became known to the injured person, or ten years from the day when the wrongful act was committed. However if the damages are claimed on account of an act punishable under the criminal law for which a longer prescription is provided such longer prescription shall apply. CHAPTER III JUSTIFIABLE ACTS Section 449. A person who, acting in lawful defence or under a lawful command, has caused injury to any other person is not liable to make compensation. The injured person can claim compensation from the person against whom the lawful defence was directed, or from the person who wrongfully gave the command, as the case may be. Section 450. If a person damages or destroys a thing in order to avert an immediate common danger, he is not liable to make compensation, provided the damage done is not out of proportion to the danger. If a person damages or destroys a things in order to avert an immediate individual danger, he shall make restitution therefore. If a person damages or destroys a thing in order to protect the rights of himself or of a third person against immediate danger threatened by the thing itself, such person is not liable to make compensation, provided the damage done is not out of proportion to the danger. If the danger was caused by such person's fault he is liable to make compensation. Section 451. A person who uses force for protecting his right is not liable to make compensation if under the circumstances the help the Court or of the proper authorities is not obtainable in due time and there is danger that, if he does not act immediately, the realization of his right will be frustrated or seriously impeded. The using of force according to the foregoing paragraph must be strictly limited to that which is necessary for adverting the danger. If any person does the act specified in the first paragraph under the erroneous assumption that the necessary conditions exist to render his act lawful, he is liable to make compensation to the other person, even if the error was not due to his negligence. Section 452. A possessor of an immovable property is entitled to seize animals belonging to another person which cause injury on such property and retain them as security fro any compensation which may be due to him, he is even entitled to kill them if it is necessary under the circumstances. However he must give notice without delay to the owner of the animals. If the owner could not be found the person seizing must take proper measures to seek him out. --------------- (up) BOOK III SPECIFIC CONTRACTS TITLE I Street fighter x tekken free download pc game. SALE NATURE AND ESSENTIALS OF THE CONTRACT OF SALE
Section 454. A previous promise of sale made by one party has the effect of a sale only when the other party has given notice of his intention to complete the sale and such notice has reached the person who made the promise. Section 455. The time of the completion of the contract of sale is referred to hereafter as the time of sale. Section 456. A sale of immovable property is void unless it is made in writing and registered by the competent official. The same rule applies to ships or vessels of six tons and over, to steam launches or motor boats of five tons and over, to floating houses and to beasts of burden. An agreement to sell or to buy any of the aforesaid property, or a promise of sale of such property is not enforceable by action unless there is some written evidence signed by the party liable or unless earnest is given, or there is part performance. The provisions of the foregoing paragraph shall apply to a contract of sale of movable property where the agreed price is five hundred baht or upwards. Section 457. The costs of a contract of sale are borne by both parties equally. PART II Section 458. The ownership of the property sold is transferred to the buyer from the moment when the contract of sale is entered into. Section 459. If a contract of sale is subject to a condition or to a time clause', the ownership of the property is not transferred until the condition is fulfilled, or the time has arrived. Section 460. In case of sale of unascertained property, the ownership is not transferred until the property has been numbered, counted, weighed, measured or selected, or its identity has been otherwise rendered certain. In case of sale of specific property, if the seller is bound to count, weigh, measure or do some other act or thing with reference to the property for the purpose of ascertaining the price, the ownership is not transferred to the buyer until such act or thing be done. CHAPTER 11 DUTIES AND LIABILITIES OF THE SELLER PART I Section 461. The seller is bound to deliver to the buyer the property sold. Section 462. Delivery may be made by doing anything which has the effect of putting the property at the disposal of the buyer. Section 463. If the contract provides that the property sold shall be sent from one place to another, delivery takes place at the moment when the property is delivered to the carrier. Section 464. The costs of transportation of the property sold to a place other than the place of performance are to be borne by the buyer. Section 465. In a sale of movable property:
Section 466. In a sale of immovable property where the total area is specified and the seller delivers the property less or more than he contracted for, the buyer has the option either to reject or accept it and pay the proportionate price. If the deficiency or excess does not exceed five per cent of the total area so specified the buyer is bound to accept it and pay the proportionate price, provided that the buyer can rescind the contract if the deficiency or excess is such that had he known of it he would not have entered into the contract. Section 467. No action for liability on account of deficiency or excess can be entered later than one year after delivery. Section 468. When there is no time clause for payment of the price, the seller is entitled to retain the property sold until the price is paid. Section 469. Even though there is a time clause for payment, if the buyer becomes bankrupt before delivery, or was bankrupt at the time of sale without the knowledge of the seller, or impairs or reduces security given for payment, the seller is entitled to retain the property sold, unless the buyer gives proper security. Section 470. When the buyer is in default, the seller who retains the property under the foregoing sections can, instead of using the ordinary remedies for non-performance, notify the buyer in writing to pay the price and incidental charges, within a reasonable time to be fixed in the notice. If the buyer fails to comply with the notice, the seller can sell the property by public auction. Section 471. The seller shall deduct from the net proceeds of the public auction what is due to him for the price and incidental charges and deliver forthwith any surplus to the buyer. PART II Liability for Defect Section 472. In case of any defect in the property sold which impairs either its value or its fitness for ordinary purposes, or for the purposes of the contract, the seller is liable. The foregoing provision applies whether the seller knew or did not know of the existence of the defect. Section 473. The seller is not liable in the following cases:
Section 474. No action for liability for defect can be entered later than one year after the discovery of the defect. PART III Liability for Eviction Section 475. The seller is liable for the consequences of any disturbance caused to the peaceful possession of the buyer by any person having over the property sold a right existing at the time of sale or by the fault of the seller. Section 476. The seller is not liable for a disturbance caused by a person whose rights were known to the buyer at the time of sale. Section 477. In any case of disturbance where an action arises between the buyer and a third person, the buyer is entitled to summon the seller to appear in the action to be joint defendant or joint plaintiff with the buyer, in order to enable the Court to settle disputes between all the parties to them in one action. Section 478. The seller is also entitled, if he thinks proper, to intervene in the action in order to deny the claim of the third person. Section 479. The seller is liable if, by reason of eviction, the buyer is deprived of the whole or part of the property sold or if the property is subject to a right, the existence of which impairs its value, fitness, use or benefit and of which the buyer had no knowledge at the time of sale. Section 480. If an immovable property is declared to be subject to a servitude established by law, the seller is not liable unless he has expressly guaranteed that the property was free from servitudes, or from that particular servitude. Section 481. If the seller was not a party to the original action, or if the buyer has made a compromise with the third person, or has yielded to his claim, no action for liability on account of eviction can be entered later than three months after final judgment in the original action, or after the date of the compromise, or of the yielding to the third person. Section 482. The seller is not liable for eviction in the following cases:
In any case the seller is liable whenever he is summoned to appear in the action and refuses PART IV Clause for Non-Liability Section 483. The parties to a contract of sale may agree that the seller shall not incur any liability for defects or eviction. Section 484. Unless the non-liability clause specifies otherwise, such clause does not exempt the seller from the repayment of the price. Section 485. A non-liability clause cannot exempt the seller from the consequences of his own acts or of facts which he knew and concealed. CHAPTER III DUTIES OF THE BUYER Section 486. The buyer is bound to take delivery of the property sold and to pay the price in accordance with the terms of the contract of sale. Section 487. The price of the property sold may be fixed by the contract, or may be left to be fixed in manner thereby agreed, or may be determined by the course of dealing between the parties. When the price is not determined as aforesaid, the buyer must pay a reasonable price. Section 488. If the buyer has discovered defects in the property sold, he is entitled to withhold the price or part of it still unpaid, unless the seller gives proper security. Section 489. The buyer is also entitled to withhold the price wholly or partly, if he is threatened, or has good reason to believe that he is about to be threatened, with an action by a mortgagee or by a person claiming the property sold, until the seller has caused the danger with which he is threatened to cease, or until the seller has given proper security. Section 490. If a time is fixed for the delivery of the property sold, it is presumed that the same time is fixed for the payment of the price. CHAPTER IV SOME PARTICUlAR KINDS OF SALES PART I Sale with Right of Redemption
Section 492. Where the property sold is redeemed within the period fixed by the contract or by law, or where the person who redeems deposits the price of redemption to a deposit office within the period by waiving the right to withdraw the price, the ownership of the property shall be vested in the person who redeems from the time of payment or deposit of the price, as the case may be. In the case of deposit under paragraph one, an official of the deposit office shall immediately give notice of it to the redeemed person, whereby the person who redeems does not have to comply with Section 333 paragraph three. Section 493. The parties may agree that the buyer shall not dispose of the property sold. If he disposes of it contrary to his agreement, he shall be liable to the seller for any injury resulting thereby. Section 494. The right of redemption cannot be exercised later than: (1) Ten years after the time of the sale in case of immovable property. (2) Three years after the time of sale in case of movable property. Section 495. If a longer period is provided in the contract, it shall be reduced to ten years and three years respectively. Section 496. The period of redemtion may be afterward extended by a contract, but if the total period is in excess of the period under Section 494, it shall be reduced to the period under Section 494. The extension of the period under paragraph one must, at least, have some written evidence signed by the redeemed person. In case of the property whose sale must be made in writing and registered by the competent official, the extension can not be set up against a third person who has, for value and in good faith, acquired and registered his right unless such writing or written evidence is registered or recorded by the competent official. Section 497. The right of redemption may be exercised only by: (1) The original seller or his heirs, or (2) The transferee of the right, or (3) Any person expressly allowed to redeem by a contract. Section 498. The right of redemption may be exercised only against:
Section 499. If no price of redemption id fixed, the property may be redeemed by reimbursing the price of the sale. If the price of redemption or the price of the sale, at the time of redemption, is higher than the real price of the sale more than fifteen percent per year, it shall be redeemed at a real price including fifteen percent per year of profit. Section 500. Costs of the sale borne by the buyer must be reimbursed together with the price. Costs of redemption are borne by the person who redeems. Section 501. The property must be returned in the condition in which it is at the time of redemption, provided that if the property has been destroyed or deteriorated through the fault of the buyer he must pay compensation therefore. Section 502. The person who redeems the property recovers it free from any rights created by the original buyer or his heirs or transferee before redemption. If a hire of property held subject to a right of redemption is registered by the competent official, it shall be valid for not more than one year of its remaining duration, provided that it is not made for the purpose of injuring the seller. PART II Sale by Sample; Sale by Description; Sale on Approval Section 503. In a sale by sample, the seller is bound to deliver property or properties corresponding to the sample. In a sale by description, the seller is bound to deliver property corresponding to the description. Section 504. No action for liability on account of non-correspondence to the sample or description can be entered later than one year after delivery. Section 505. A sale on approval is the selling contract that the buyer having an option to buy when verifying the buying property. Section 506. To verify the property, if there is no buying deadline, the seller may specify the reasonable deadline period and give a notice to the buyer to accept or reject the buying or not. Section 507. The property that the buyer having option to verify before delivery, if the buyer does not accept it within the deadline stated in the contract or commercial practice or deadline setting by the seller, the selling contract is unbound. Section 508. When the property is delivered to the buyer for verifying, the selling and the buying shall be absolutely completed in the following cases: (1) If the buyer does not reject the purchasing within deadline specified in the contract or by commercial practice or setting by the seller; or Section 509. The auction shall be completed when the auctioneer accepts the final price by knocking the wood hammer or any practical acts in auct ion; otherwise the bidder can withdraw his bid in anytime. Section 510. During bidding process, the bidder must comply with the bidding procedure that the auctioneer has announced in each bidding. Section 511. The auctioneer cannot make a bid or let any person to make a bid for his own benefit that he is control the bidding process. Section 512. The seller cannot make a bid or let any person to make a bid, except specified in the bidding terms and conditions that the seller has the right to bid. Section 513. If the auctioneer thinks that the bidding price is not high enough, he may withdraw the said property auction. Section 514. The bidder shall be unbound from his bid when other person offers a higher bidding price, even though the said bidding is complete or not, or when the auctioneer withdraws the said property auction. Section 515. Bidder who offers the highest bidding price must pay in cash when the auction is complete or the deadline specified in the bidding advertising. Section 516. If the bidder who offers the highest bidding price does not pay the money, the auctioneer may renew the auction. If the renew bidding price is lower than the previous one, such default bidder must liable for the short. Section 517. If some or all of the proceed from auction is unpaid that the cause comes from the ignorance of the auctioneer under Section 515 or Section 516, the auctioneer has to liable for the unpaid amount. TITLE II EXCHANGE Section 518. Exchange is the contract that both parties transfer the right of ownership to each other. Section 519. In any provisions of the laws relating to the selling and buying, the exchange is also included in such provision by implying that both parties are seller and buyer for such transfer of such properties. Section 520. If any exchanging party accepts to add money with the exchange of property to anther, the selling price shall include such additional cash payment too. (up) --------------- TITLE III GIFT Section 521. A gift is a contract whereby a person. Called the donor, transfers gratuitously a property of his own to another person, called the donee, and the donee accepts such property. Section 522. A gift may be made by granting to the donee the release of an obligation or by performing an obligation due from the donee. Section 523. A gift is valid only on delivery of the property given. Section 524. If a right represented by a written instrument is given, the gift is not valid unless such instrument is delivered to the donee and the gift is notified in writing to the debtor of the right. Section 525. The gift of a property the sale of which must be made in writing and registered by such competent official is valid only when so made and registered by the competent official. In such case it is valid without delivery. Section 526. If a gift or a promise for a gift has been made in writing and registered by the competent official and the donor does not deliver to the donee the property given, the donee is entitled to claim the delivery of it or its value, but he is not entitled to any additional compensation. Section 527. If a donor binds himself to make periodical performance the obligation is extinguished on the death either of the donor or the donee unless a contrary intention appears from the obligation. Section 528. If the gift is encumbered with a charge and the donee fails to perform the charge, the donor may, under the conditions specified for the right of rescission in the case of reciprocal contracts, demand the return of the gift under the provisions relating to the return of undue enrichment in so far as the gift ought to have been applied to the performance of the change. This claim is barred if a third party is entitled to require the performance of the charge. Section 529. If the property given is not sufficient to satisfy the charge, the donee has to perform only to the extent of the value of the property. Section 530. If the gift encumbered with a charge, the donor is liable for defect or eviction in the same manner as the seller but only to the extent of the charge. Section 531. The donor can claim revocation of a gift for an act of ingratitude only in the following cases.
Section. 532. The heir of the donor can claim revocation only if the donee has intentionally and unlawfully killed the donor or prevented him from revoking the gift. However, the heir may continue an action which has been duly entered by the donor. Section 533. A gift cannot be revoked if the donor has forgiven the donee, or if six months have elapsed since the time when the act of ingratitude came to knowledge of the person entitled to claim revocation. No action can be claimed later than ten years after such act. Section 534. If the gift is revoked, the property shall be returned under the provisions of this Code concerning Undue Enrichment. Section 535. The following gifts are not revocable for ingratitude: (1) Gifts purely remuneratory (2) Gifts encumbered with a charge (3) Gifts made in compliance with a moral duty (4) Gifts made in consideration of marriage Section 536. A gift to take effect at the death of the donor is governed by the provisions of Law concerning Inheritance and Wills. CONTINUE TO PART II (SECTIONS 537 F.F.)
related translationThailand Penal Code(thai criminal law)
TITLE IGENERAL PROVISIONS
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Section 1 In this Code, if there is a definition of any term, such term is to be construed in the sense defined, unless the wording of the text is repugnant to such definition.
In this Code:
Section 3 Persons specified in sections 4, 5 and 6 have the power to act on behalf of the injured person according to the conditions provided in those sections as follows:
Section 4 In the criminal case, which the injured person the married woman, that woman has the right to prefer criminal charge with being permitted by her husband.
Subject to the provision of section 5/2, her husband to be entitled to bring the criminal charge on behalf of his wife only with her express permission.
Section 5 The following persons may act on behalf of the injured person:
Section 6 In a criminal case, if a victim is a minor without any statutory agent, or is insane or is incompetent without any custodian, or if the statutory agent or custodian is unable to perform his duty by any reason which includes a conflict of interest with the minor or incompetent person, a relative of such person or any interested person may file a motion to the court for appointing him as a representative ad litem.
Having heard, the court shall appoint as representative ad litem the movant or other person agreeing thereto, as it may deem appropriate. Where no one is willing to serve as a representative ad litem, an administrative official shall be appointed.In respect of the procedural acts performed for the purpose of such appointment, no costs may be levied.
Section 7 In an inquiry, preliminary hearing or trial, if an accused or defendant is a juristic person, a manager or other representative of such juristic person shall be summonsed to attend the inquiry or court, whichever applies.
Had the manager or representative failed to abide by the summons, a warrant of arrest may be directed against him. However, in respect of the status of the juristic person as the accused or defendant, the provisions governing provisional release, detention or imprisonment shall not apply to the manager or representative
Section 7/1 An arrestee or accused who is restrained or detained shall be entitled to, at the earliest occasion, inform or request the inquirer to inform his relative or a person in whom he reposes of the fact that he is under arrest and the place of his restraint. Also, the arrestee or accused shall be entitled to:
The administrative or police official receiving the arrestee or accused shall bear the duty to, at the earliest occasion, enlighten him on the rights set forth in paragraph 1.
Section 8 From the moment the charge is preferred, the defendant shall be entitled to:
Should the defendant be represented by a counsel, the counsel shall be entitled to the same aforementioned rights as the defendant.From the moment the charge is entered by the public prosecutor in court, the victim shall be entitled to paragraph 1 (6) as on a par with the defendant.
Section 9 A note shall specify the place and date thereof as well as the name and office of the official making it.
Where a note is made by an official by cause of a judicial order or an order or application of another official, the receipt and observance of such order or application shall also be mentioned.The official making the note shall affix his signature thereto.
Section 10 A memorandum shall specify the name of the court making it as well as the place and date thereof. If it is made by virtue of an order or commission of other court, the receipt and execution of the said order or commission shall also be mentioned.The judge making the note shall set his hand thereto.
Section 11 With respect to a note or memorandum, the official or court shall read it to the person giving the statement. Any alteration, expostulation or addition may be made thereto or noted therein with the signature of the person giving the statement in approval thereof.
Where a person required to sign a note or memorandum is unable to or refuses to so sign, this fact shall be noted down or reported.
Section 12 With regard to a document drawn up by a court or official, or a complaint, denunciation, plea or motion submitted to the same, it shall be written in ink or typewritten or printed. Any mistake shall not be expunged, but merely redacted and rewritten with the initials of the judge, official or person making such correction in the margin of the paper.
Any addition made to the document described in this section must be initialed by the judge, official or person making it.
12 bis Where any legal provision requires a psychologist or social worker to participate in the lodging of a complaint or the holding of an inquiry, preliminary hearing or trial, the psychologist or social worker shall be qualified according to the ministerial regulations.
The psychologist or social worker under paragraph 1 shall be entitled to remuneration in conformance with the rule issued by the Ministry of Justice with approval of the Ministry of Finance.
Section 13 An inquiry, preliminary hearing or trial shall be conducted in Thai language. Where it is necessary to translate a Thai dialect, vernacular or foreign language into Thai language or vice versa, an interpreter shall be required.Where the victim, accused, defendant or witness cannot speak or understand Thai language or can speak or understand only a Thai dialect or vernacular and is not yet represented by any interpreter, the inquirer, public prosecutor or court shall without delay furnish him with an interpreter.
Where the victim, accused, defendant or witness sustains speech disorder or hearing impairment or cannot express meaning and is not yet represented by any sign language interpreter, the inquirer, public prosecutor or court shall provide one for him or may organise other appropriate means of questioning, answering or meaning expression for him.
Where the interpreter is required to make a translation or interpretation of a plea, testimony or others, he shall make it accurately and shall take an oath or make an affirmation that he shall perform the duty in all sincerity without adding anything to or reducing anything from the translation or interpretation. The interpreter shall set his hand to the translation or interpretation.
In pursuance of the rule issued by the National Police Headquarters, Ministry of Interior, Ministry of Justice, Office of the Attorney-General or Office of Courts of Justice, as the case may be, with approval of the Ministry of Finance, the inquirer, public prosecutor or court shall, by order, pay to the interpreter under this section allowances, travel expenses and residence outlays.
Section 13 bis(Repealed)
Section 14 In the course of an inquiry, preliminary hearing or trial, should there be a reasonable belief that the accused or defendant is insane and therefore unfit to plead, the inquirer or court, as applicable, shall order a medical official to hold a psychiatric evaluation of the person in question and thereafter make a personal appearance to give statement or testimony as to the outcome of the evaluation.
In the event that the inquirer or court finds the accused or defendant insane and unfit to plead, the inquiry, preliminary hearing or trial shall be suspended until the person in question recovers his sanity or is fit to plead.
Where appropriate, the inquirer or court shall also be authorised to deliver the person in question to a lunatic asylum, custodian, Commissioner of Changwat or other person willing to take charge of him.In the event that the preliminary hearing or trial has been suspended pursuant to the foregoing paragraph, the case may be disposed of by the court for a provisional period.
Section 15 Where no provisions of the present Code is specifically applicable to any procedural act, the provisions of the Civil Procedure Code shall apply to the extent possible.
Title 2Powers of Inquirers and Jursidictions of Courts
Chapter 1
General Rules
Section 16 The jurisdictions of courts, the powers of judges, the powers of public prosecutors and the powers of administrative or police officials in executing the provisions of the present Code shall be in accordance with the laws and rules governing the establishment of courts of justice and determining the powers and duties of judges or governing the powers and duties of public prosecutors or administrative or police officials.
Chapter 2
Powers of Investigation and Inquiry
Section 17 The administrative or police officials shall be invested with the power to conduct investigations as to the criminal offences.
Section 18 In any Changwat other than Changwat Phra Nakhon and Changwat Thon Buri, the superior administrative or police officials, the Assistant Chief Officers of Amphoes and the police officials ranking as or from police sub-lieutenant shall be empowered to conduct inquiries as to the criminal offences which have, or are alleged or believed to have, been committed inside their districts or the persons accused of which are residing or have been arrested inside their districts.
In Changwat Phra Nakhon and Changwat Thon Buri, the police officials ranking as or from police sub-lieutenant shall be empowered to hold inquiries as to the criminal offences which have, or are alleged or believed to have, been committed inside their districts or the persons accused of which are residing or have been arrested inside their districts.
Subject to the provisions of sections 19, 20 and 21, the inquirers inside whose districts the criminal offences have been committed shall, in general, bear the duty to carry out inquiries as to those offences for the sake of the prosecutions. However, in case of necessity or in the interest of convenience, the inquirers of the venues wherein the accused are residing or have been arrested shall be the responsible inquirers.
If there are several inquirers in the same venue, the chief inquirer of such venue or the person serving ad interim as the chief inquirer shall be the responsible inquirer.
Section 19 On the following grounds:
The inquirers of the venue concerned may exercise the power of inquiry.On the abovementioned grounds, the following shall become the responsible inquirer:
Thai Civil Procedure Code Pdf With Latest Amendments
(a) Had the accused been arrested, the inquirer in whose district the arrest has been conducted first.
(b) Had the accused not yet been arrested, the inquirer in whose district the offence has been discovered first.
Section 20 Where an offence punishable under Thai law has been committed outside the Kingdom of Thailand, the Attorney-General or the person serving ad interim as the Attorney-General shall be the responsible inquirer, but he may entrust any public prosecutor or inquirer to exercise the power of inquiry on his behalf.
In the event that an inquirer has been entrusted by the Attorney-General or the person serving ad interim as the Attorney-General to exercise the power of inquiry, a public prosecutor may be assigned by the same to partake in such exercise.
The public prosecutor entrusted to exercise the power of inquiry or assigned to partake in an inquiry of the entrusted inquirer shall, in conjunction with all other powers and duties invested with him by law, have the same powers and duties of inquiry as the inquirer.In the event that the power of inquiry is exercised by a public prosecutor together with an inquirer, the inquirer shall, with respect to the collection of evidence, abide by the orders and instructions of the public prosecutor.
In case of necessity, the following inquirers shall be accredited to exercise the power of inquiry pending an order of the Attorney-General or the person serving ad interim as the Attorney-General:
Section 21 Where it is uncertain that which of the inquirers of the same Changwat shall be the responsible inquirer, the matter shall be referred to the Commissioner of Changwat or, in Changwat Phra Nakhon and Changwat Thon Buri, to the chief inquirer ranking as from Deputy Director-General of the Police Department[6] for decision.
Where it is uncertain that which of the inquirers of several Changwats shall be the responsible inquirer, the matter shall be referred to the Director-General of the Public Prosecution Department or the person serving ad interim as the Director-General of the Public Prosecution Department for decision.
The fact that such decision is impending shall not cause the inquiry to be suspended.
Chapter 3
Jurisdictions of Courts
Section 22 When an offence has, or is alleged or believed to have, been committed inside the district of any court, the offence shall be subject to jurisdiction of such court, save:
Section 23 When two or more courts are jurisdictional in respect of the same case, if the charge has been preferred to one inside whose district the offence had not been committed according to the charge, the prosecutor or defendant may enter in such court a motion for transferring the case to the other inside whose district the commission of such offence had occurred.
Where the charge has been preferred before the court inside whose district the offence had been committed and it later appears to the prosecutor that the trial would become more convenient if it be held by the other court which is also jurisdictional, the prosecutor may enter in the court before which the case is pending a motion for transferring the case to such other court. Notwithstanding any objection by the defendant, if the court deems appropriate, it may grant or dismiss the motion.
Section 24 When several offences are connected by any reason, for instance:
The prosecutions against all of the said offences may be instituted in, or all of the said offenders may be charged before, the court having jurisdiction over the offence wherefor the higher maximum punishment is provided.Should the connected offences be liable to equal maximum punishment, the court wherein the prosecution against any of the said connected offences has been entered first shall enjoy jurisdiction over all of such offences.
Section 25 The court admitting the connected cases may try and adjudicate them jointly.In the event that the court admitting the connected cases deems appropriate to have any of the cases tried and adjudicated by a court with ordinary jurisdiction if it is not connected with each other, it may, with the consent of the other court, order the charge against such offence to be entered in that other court.
Section 26 Should a preliminary hearing or trial be obstructed, or should it be feared that an unrest or any other danger would occur, by reason of the nature of the offence, the status of the defendant, the number of the defendants, the sentiment of the most citizens of the locality or by any other reason, the prosecutor or defendant may file to the Chief Judge of the Supreme Court of Justice a petition for having the case transferred to another court. If the Chief Judge of the Supreme Court of Justice grants the petition, he shall, by order, transfer the case to a court designated by him.Any order of the Chief Judge of the Supreme Court of Justice shall be final.
Section 27 A challenge may be made against any judge of a court trying a criminal case pursuant to the provisions of the Civil Procedure Code concerned.
Title 3Criminal Prosecutions and Penal Actions
Chapter 1
Criminal Prosecutions
Section 28 The followings are entitled to institute criminal prosecution in court:
Section 29 If the victim dies following having instituted a prosecution, the deceased’s ascendant, descendant or spouse may proceed with the case in his stead.If the victim who is a minor, insane person or incompetent person dies following his statutory agent, custodian or representative ad litem having brought a prosecution on his behalf, the latter may proceed with the case.
Section 30 In respect of a public prosecution, the victim may, by motion, associate himself as prosecutor at any stage of the trial before the court of first instance but prior to the delivery of judgment.
Section 31 In regard to a private prosecution against non-compoundable offence, the public prosecutor may, by motion, associate himself as prosecutor at any stage prior to the finality and absoluteness of the case.
Section 32 Where the public prosecutor and the victim are joint prosecutors, if the public prosecutor is of an opinion that the case would be jeopardised on account of the victim’s performance of or omission to perform any procedural act, he shall have the power to apply to the court for an order instructing the victim to perform or not to perform such act.
Section 33Where the prosecutions against the same offence have been instituted by the public prosecutor and the victim either in the same court of first instance or in different courts of first instance, any of such courts may, either proprio motu or upon motion filed by the prosecutor at any stage but prior to the delivery of judgment, order the prosecutions to be joined.
On pain of nullity, the said order must be rendered with the consent of the other court(s).
Section 34 An order of non-prosecution does not prejudice the victim’s right to institute a prosecution by himself.
Section 35 A nolle prosequi may be entered at any time prior to the court of first instance’s delivery of judgment. The court may, by order, grant or dismiss it as deemed appropriate. If the nolle prosequi is entered after the defendant’s responsive plea has been filed, the court shall ask the defendant whether he would raise any objection thereagainst and note down his statement. The nolle prosequi must be dismissed if it meets with any objection by the defendant.
As for a compoundable case, a nolle prosequi may be entered or the case may be compromised at any time prior to its finality. The nolle prosequi must be dismissed if it meets with any objection by the defendant.
Section 36 A case having been withdrawn from the court may not be reinstituted, save:
Section 37 A criminal case shall terminate as follows:
Section 38 As for the case pursuant to subsections (2), (3) and (4) of the foregoing section, if the official under such section entertains an opinion that the accused should not be punished with imprisonment, he shall be empowered to settle the case as follows:
Section 39 The right to prosecute shall be extinguished:
Chapter 2
Penal Actions
Section 40 A penal action may be entered in the court where the criminal case is being tried or brought separately before the court empowered to exercise civil jurisdiction; prescribed that the civil proceedings must be in conformity with the provisions of the Civil Procedure Code.
Section 41 Where the civil proceedings would delay or interrupt the criminal proceedings, the court shall have the power to, by order, rule that the civil part be separated from the criminal part and be independently tried by a jurisdictional court.
Section 42 In the civil proceedings, if the court does not satisfy with the evidence adduced in the criminal proceedings, it may order further evidence to be taken.In such respect, a judgment as to the criminal part may be rendered in the first place, whereas that concerning the civil part may be passed afterwards.
Section 43 As for a case of theft, snatching, robbery, brigandage, piracy, extortion, swindling, misappropriation or receipt of stolen property, if the victim is entitled to claim the restitution of the property he has been deprived of through the commission of such offence or claim the value of such property, the public prosecutor, when instituting a prosecution, shall also enter such claim on behalf of the victim.
Section 44 A claim for restitution of property or value thereof in pursuance of the foregoing section may be exercised by the public prosecutor together with the institution of a prosecution or by way of motion subsequently submitted at any stage of the criminal proceedings of the court of first instance.
A judgment as to the claim for restitution of property or value thereof shall be rendered as part of that as to the criminal case.
Section 44/1 As for a public prosecution, if the victim is entitled to claim compensation in as much as the commission of offence by the defendant has caused him to lose his life, or sustain bodily or mental harm, personal liberty injury, reputation impairment or proprietary damage, he may submit to the court trying the criminal case a motion for coercively directing the defendant to make compensation for such loss.
The motion under paragraph 1 must be submitted before the taking of evidence takes place or, where the taking of evidence is not required, before the case is adjudicated. Such motion shall be deemed as a plaint under the provisions of the Civil Procedure Code, and the victim, the plaintiff. In this respect, the motion must contain reasonable particulars as to the loss and the amount of compensation claimed. Viewing that any gravamen in the motion is inadequate, the court may order the movant to correct the motion.
The motion under paragraph 1 may not include any application other than that for coercively directing the defendant to make compensation for the loss arisen through his commission of offence, and may not be contrary to or inconsistent with the charge entered by the public prosecution in the criminal case. With the condition that that the public prosecutor has complied with the provisions of section 43, the victim is no more entitled to submit the motion under paragraph 1 claiming for the restitution of property or value thereof.
Section 44/2 Upon receipt of the motion under section 44/1, the court shall inform the defendant of it. Any statement of the defendant shall be noted down. Should the defendant wish to submit a statement in writing, the court shall fix a period of time therefor as deemed appropriate. And when the public prosecutor has completely adduced evidence, the court may allow the victim to introduce any evidence concerning compensation as necessary, or may in the first place render a judgment as to the criminal part and afterwards deliver that as to the civil part.
If it appears to the court that the movant under section 44/1 cannot furnish himself with a counsel by cause of pauperism, the court shall be invested with the power to appoint one for him. The counsel appointed shall be entitled to the gratuity and outlays in pursuance of the rule laid by the Judicial Administration Commission.
Section 45 The fact that a prosecution against any offence has been instituted does not prejudice the victim’s right to bring a penal action on the basis of such offence also.
Section 46 In adjudicating the civil part, the court shall adhere to the facts as appeared in the judgment as to the criminal part.
Section 47 A judgment as to the civil part shall be rendered in conformity with the legal provisions governing civil liabilities, irrespective of whether the defendant has been convicted.
The value of the property to be paid to the victim by the defendant shall be determined in accordance with the actual value of such property, whereas the amount of compensation to be received by the victim shall be fixed according to the loss sustained, but not exceeding the amount claimed.
Section 48 The property, in respect of which a judgment for the restitution is passed and the owner is not yet known, shall remain in possession of the depositary official. Whenever the owner becomes known, the depositary official shall return the property to him.
In the event that the owner is known, the court, in rendering such judgment, shall order the depositary official to return the property to him.In case of dispute, the person claiming to be the true owner shall enter an action before the jurisdictional court.
Section 49 Even no penal action is brought, the court may, when adjudging the criminal case, order an exhibit to be returned to the owner.
Section 50 If the court grants the restitution of property or value thereof or the compensation to the victim in pursuance of section 43, 44 or 44/1, the victim shall be regarded as judgment creditor.
Section 51 Where no prosecution has been brought against any offence, the victim’s right to enter a penal action on the basis of such offence shall be extinguished when the period of prescription fixed by the Criminal Code for such prosecution does lapse, event the action would be commenced by a minor or insane person under section 193/20 of the Civil and Commercial Code or be filed separately from the prosecution.Where a prosecution has been instituted against any offence and the offender has been brought before the court also, but the case is not yet final, the prescription governing the victim’s right to enter a penal action on basis of that offence shall be interrupted by virtue of section 95 of the Criminal Code.
Where a prosecution had been entered and a final judgment of conviction has been delivered prior to the entry of a penal action, the prescription governing the victim’s right to institute such action shall be regulated by section 193/32 of the Civil and Commercial Code.Where a prosecution had been instituted and a final judgment of acquittal has been delivered prior to the entry of a penal action, the prescription of the victim’s right to file such action shall be regulated by the Civil and Commercial Code.
Title 4Summonses and Criminal Warrants
Chapter 1
Summonses
Section 52 In order to require for a personal appearance of any person before a superior administrative or police official or court in the interest of an inquiry, preliminary hearing, trial or any other act under the present Code, a summons shall be directed for such person by the inquirer, superior administrative or police official or court, as the case may be.
In the event that an inquirer or superior administrative or police official holds an inquiry in person, he shall enjoy the power to require an accused or witness to make presence without issuing any summons.
Section 53 A summons shall be made in writing and shall contain the following items:
Sectiomns 54 In fixing the date and time for the summonsed to make a personal appearance, the distance shall be taken into consideration, so that he would enjoy the opportunity to timely appear according to the date and time fixed in the summons.
Sections 55 Apropos a summons directed for the accused, no person other than a spouse, relative or guardian of the summonsed may receive the summons on his behalf.
Sections 55/1 As for a public prosecution, should a summons be directed by the court to a prosecution witness without any means of service specified, the public prosecutor shall be charged with the duty to entrust the chief inquirer of the locality to serve the summons upon the witness, secure appearance of the witness on the date designated and without delay report the outcome of the service to the court and the public prosecutor. Fearing that the witness would be unable to attend court or that it would be difficult to bring the witness to the court on the date fixed, the public prosecutor shall apply to the court for the taking of evidence in advance pursuant to section 173/2, paragraph 2.
The official undertaking the service shall be entitled to have his outlays recompensed according to the rule issued by the Ministry of Justice with approval of the Ministry of Finance.
Section 56 If the summonsed is residing in any locality other than the place where the summons is issued, the summons shall be sent over, if issued by any court, to the other court or, if issued by any administrative or police official, to the other administrative or police official empowered to issue summonses in the locality where the summonsed is. The court or administrative or police official receiving the summons shall endorse it and serve it upon the summonsed.
Chapter 2Criminal Warrants
Part 1
General Rules
Section 57 An arrest, detention or imprisonment of a person as well as a search for a person or article in a private place may only be conducted upon a judicial order or warrant thereof, subject to the provisions of sections 78, 79, 80, 82 and 94 of the present Code.A person who is detained or imprisoned by virtue of a judicial warrant may only be released upon a judicial warrant of release.
Section 58 The courts shall be given the power to issue the orders or criminal warrants inside their districts, subject to the criteria and procedure prescribed in the regulation of the President of the Supreme Court of Justice.
Section 59 An order or warrant of arrest, search or detention may be issued by the court either proprio motu or upon application.In the event that an application is to be made by an administrative or police official, only an administrative official ranking as or from third class or a police official ranking as or from police sub-lieutenant shall be competent to make the application.
In the case of urgent need where the applicant for a warrant of arrest or search is unable to make his presence before the court, he may make the application by means of telephone, facsimile, electronics or other appropriate means of information technology. In this respect, when the court questions the applicant until it ensures that there are grounds for issuing a warrant of arrest or search pursuant to section 59/1, and the court issues such warrant, the court shall then submit to the applicant by means of facsimile, electronics or other appropriate means of information technology a copy of the warrant. All of these shall be subject to the criteria and procedure prescribed in the regulation of the President of the Supreme Court of Justice.
Upon having issued the warrant according to paragraph 3, the court shall straightaway require the person concerned to make his personal appearance in order to administer an oath before it. In this respect, the oath may be recorded in a form of memorandum signed by the court issuing the warrant, or recorded by a device with a transcription signed by the court issuing the warrant. The record signed shall be kept in the court’s archive. If it later appears to the court that the issuance has been made in violation of the legal provisions, the court may, by order, revoke or alter the warrant issued and, where appropriate, direct the applicant to remedy such an injury the person concerned has undergone.(Table of contents)
Section 59/1 Prior to the issuance of any warrant, there shall be justifiable evidence to ensure the court that the reasonable grounds for issuing such warrant are established in accordance with section 66, 69 or 71.A judicial order issuing a warrant or dismissing an application must contain the grounds therefor.
The application, consideration and issuance shall be in conformity with the criteria and procedure prescribed in the regulation of the President of the Supreme Court of Justice.
Section 60 A warrant of arrest, search, detention, imprisonment or release shall be made in writing and shall contain the following items:
Section 61 Subject to section 97, the administrative or police officials shall have the power and bear the duty to enforce the criminal warrants delivered or forwarded to them.
A criminal warrant issued by a court may be delivered or forwarded to an administrative or police official who is inside the district of the court and is designated in the warrant, or to the chief administrative or police official of such Changwat, Amphoe, King Amphoe or Tambon to further enforce the warrant.
In the latter respect, the official receiving the warrant shall be responsible for the enforcement of the same, he may perform such duty in person or deliver or forward a certified copy thereof to his inferior administrative or police official whose duty is to enforce the warrants so delivered or forwarded. If the warrant is delivered or forwarded to two or more officials, they may enforce the warrant independently or jointly.
Section 62 Subject to the provisions of the present Code governing arrest and search, the official enforcing a warrant of arrest or search must inform the person concerned about the contents thereof and, if requested, allow such person to inspect the warrant.
The information, the inspection and the date thereof shall be noted down in the warrant.
63 Upon completion of the enforcement of a criminal warrant, the official shall make a detailed note thereof. If the enforcement was unsuccessful, a note of the circumstances concerned shall be made and forwarded to the court issuing the warrant without hesitation.
Section 64 Had the person designated in a criminal warrant been under arrest or the person or article searched for by virtue of a warrant of search been discovered, such person or article shall, if possible, be sent without delay to the court issuing the warrant or to the official designated in the warrant, whichever applies, save where the court shall elsewise order.
Section 65 Should the person arrested by virtue of a warrant abscond or be rescued, the official making the arrest may pursue and arrest him without having to obtain another warrant.
Part 2
Warrants of Arrest
Section 66 A warrant of arrest shall be issued on the following grounds:
(1) When there is justifiable evidence supporting that any person is likely to have committed an offence liable to the maximum imprisonment for a term surpassing three years; or
(2) When there is justifiable evidence supporting that any person might have committed an offence and there is reasonable belief that he may abscond, tamper with evidence or cause another danger.
If the person has no fixed residence or has, without reasonable excuse, failed to appear as summonsed or designated, it shall be presumed that he is about to abscond.
Section 67 A warrant of arrest may be issued against a person whose name is unknown, but the identity of that person must be described as far as possible.
Section 68 A warrant of arrest shall remain in effect until the prescription of the offence therein mentioned lapses or the court issuing it revokes it.
Part 3
Warrants of Search
Section 69 A warrant of search may be directed for any of the following purposes:
Section 70 A warrant of search may not be issued for the purpose of discovering and arresting any person, save where a warrant of arrest is also directed against the person and the official enforcing the warrant of search has in his possession both the warrant of search and the warrant of arrest.
Part 4
Warrants of Detention, Imprisonment or Release
Section 71 A warrant of detention of any accused or defendant may be issued by the court at any stage of an inquiry, preliminary hearing or trial pursuant to section 87 or 88 after the accused or defendant is brought before it, and the provisions of section 66 shall mutatis mutandis apply.
A warrant of detention shall remain in effect until the court replaces it with a warrant of release or imprisonment.A warrant of detention may be withheld or replaced with a warrant of release, when it appears to the court that the accused or defendant has not yet attained his eighteenth year, is conceiving a child, has given birth to a child for a period not yet over three months or is ill to the extent that, if detained, he would confront with fatal danger, without prejudice to the court’s power to, by order, rule that the accused or defendant is to be under the care of an official or person agreeing to take charge of him or that certain measures are to be undertaken in order to prevent his abscondence or any possible injury. Should such order be delivered during the inquiry, it shall be effective for a period of six months as from the date of its delivery. Had such order been delivered during the trial, it shall take effect until the trial is over. If, following the delivery of the said order, the accused or defendant fails to comply with the measures ruled or the circumstances have changed, the court may alter the order or replace it with a warrant of detention as deemed appropriate.
Section 72 A warrant of release of an accused or defendant detained by virtue of a judicial warrant shall be directed in any of the following cases:
Section 73 A warrant of release of a defendant shall be issued when, in relation to a case pending in the court of second instance or court of last resort, the defendant has been restrained or detained for a period of time equivalent to or longer than a term of imprisonment to which he has been sentenced or which he must undergo for non-payment of fine, save where the court entertains otherwise opinion in the event that the prosecutor has lodged with the court of second instance or court of last resort an appeal for a more severe sentence.
Section 74 A warrant of imprisonment of any person shall be issued when the person is sentenced to a term of imprisonment, or to capital punishment or to a term of imprisonment in lieu of fine, subject to sections 73 and 185, paragraph 2.
Setion 75 A warrant of release of a person sentenced to a term of imprisonment shall be issued when the person has fully served his term, has been pardoned by the King, has been released conditionally or amnestied, or when his term of imprisonment has come to an end on any other account.
Section 76 A warrant of detention, imprisonment or release shall be enforced at once.
Title 5Arrest, Detention, Imprisonment, Search and Provisional Release
Chapter 1
Arrest, Detention and Imprisonment
Section 77 A warrant of arrest is enforceable throughout the Kingdom.A warrant of arrest may be carried upon any of the following documentary evidence:
In carrying out the enforcement pursuant to (2) and (3), the warrant or a certified copy thereof shall be delivered to the enforcing official without delay.
Section 78 An administrative or police official may not arrest any person without a warrant of warrant or order directed by a court, save:
Section 79 A private citizen may not arrest another person, save where section 82 is satisfied or where the person in question commits a flagrant offence and such offence is one of those listed in the Schedule hereto annexed.(Table of contents)
Section 80 A person who is in the very act of committing or is discovered under the circumstances whereby it could be decidedly concluded that he has just committed an offence commits a flagrant offence.
However, when any person who falls under one of the following items has committed any of the offences listed in the Schedule hereto annexed, he shall be deemed to commit a flagrant offence:
(1) The person being engaged in fresh pursuit with hutesium et clamor.
(2) The person being discovered almost immediately following the commission of the offence in the vicinity of the offence scene, and carrying with him an article obtained through the offence or a weapon or other object which is manifestly believed to have been used in the commission, or with visible traces of the guilt on his dress or body.
Section 81 Irrespective of whether a warrant of arrest has been obtained, an arrest may not be conducted in a private place, save where the provisions of the present Code governing search in private place are abided by.
Section 81/1 Irrespective of whether a warrant of arrest has been obtained, an arrest may not be conducted within the site of the Phra Borom Maha Ratchawang, a Phra Ratchawang, a Wang of the Heir Apparent or senior member of the royal household ranking from Somdet Chao Fa, a Phra Ratchaniwet, a Phra Tamnak, or a place where the King, the Queen, the Heir Apparent, a senior member of the royal household ranking from Somdet Chao Fa or the Regent resides, save:
Section 82 An official enforcing a warrant of arrest may request assistance from any person nearby. But, the official may not compel such person to give assistance in a manner likely to imperil himself.
Section 83 In conducting an arrest, the official or private citizen shall enlighten the arrestee that he shall be under arrest, and order him to make his presence at the local office of inquiry together with the person conducting the arrest, save where the arrestee may be brought to the office of the responsible inquirer at that very time. In case of necessity, the arrestee may be apprehended.
Where the arrest is conducted by the official, such official shall inform the arrestee of the charge and, if any, produce the warrant of arrest to the arrestee. The arrestee shall then be enlightened that he is entitled to remain silent and his statement may be used as evidence in a trial, and that the he is also entitled to meet with and take advice of a counsel or a person to become his counsel. If the arrestee wishes to inform his relative or a person in whom he reposes of the fact that he is under arrest, and such information can be made facilely, and it would not obstruct the arrest or restraint of the arrestee or endanger any person, the official shall allow the arrestee to fulfill his wish as suitable to the circumstances. In this respect, the official shall make an arrest note.Where the arrestee does or is likely to resist the arrest, or does or attempts to abscond, the person conducting the arrest may undertake any measures for prevention as far as suitable to the circumstances of the event.
Section 84 The official or private citizen conducting the arrest shall without hesitation bring the arrestee to the local office of inquiry pursuant to section 83 where the arrestee shall be delivered to an administrative or police official attached to such office. The following actions shall then be taken:
(1) In case of the official’s arrest, the official conducting the arrest shall inform the arrestee of the allegation and the essential facts of the offence alleged. If any, the warrant of arrest shall be produced and read to the arrestee. Also, a copied arrest note shall be given to the arrestee.
(2) In case of the citizen’s arrest, the administrative or police official receiving the arrestee shall make a note of the name, profession and residence of the person conducting the arrest, as well as the information and circumstances as to the arrest, with the signature of the person conducting the arrest affixed.
The arrestee shall, then, be informed of the allegation and the essential facts of the offence alleged, and the fact that he is entitled to remain silent and his statement may be used as evidence in a trial.
At the earliest occasion from the time the arrestee appears at the office of inquiry under paragraph 1, the administrative or police official receiving the arrestee shall, upon having complied with paragraph 1, enlighten the arrestee on the rights set forth in section 7/1, and allow him to contact with his relative or a person in whom he reposes, so that he would inform such person about the fact that he is under arrest and the place of his restraint. If the arrestee requests the administrative or police official to make such information on his behalf, this request must be fulfilled without delay and be noted down by the administrative or police official. In this respect, no costs may be demanded from the arrestee.In case of necessity, the official or private citizen conducting the arrest may have the arrestee medically aided prior to bringing him to the responsible official under this section.
Any statement given by the arrestee to the official conducting the arrest, or to the administrative or police official in the course of the arrest or receipt of the arrestee, shall be excluded from evidence if it be an admission of guilt regarding the offence alleged. If the statement is not the said admission, it may be adduced as evidence for proving the guilt of the arrestee only when the rights under paragraph 1 or section 83, paragraph 2, whichever applies, have been informed to the arrestee.
Section 84/1 The administrative or police official receiving the arrestee may provisionally release or restrain the arrestee. Had the arrest been conducted upon the warrant directed by the court, section 64 shall be observed without delay. In the event that it is necessary to bring the arrestee to the court but it is impossible for the court is shut or is about to be shut, the administrative or police official receiving the arrestee may provisionally release him or restrain him until the court is open.
Section 85 The official conducting the arrest or receiving the arrestee shall be invested with the power to search the person of the arrestee and seize all articles which may be used as evidence.The search shall be conducted in a respectful manner. The search on the person of a female must be made by another female.
The official shall have the power to retain the article seized until the finality of the case. Upon the case becoming final, the article shall be returned to the accused or other person entitled to claim its return, save where the court shall elsewise order.(Table of contents)
Section 85/1 In so far as the article seized by the official and not being the property whose creation or possession constitutes an offence pursuant to law is not yet adduced or produced as evidence in the trial, the owner or person entitled to claim return thereof may, during the inquiry, submit to the inquirer or public prosecutor, whichever applies, an application for return of such article, so that he would maintain or enjoy that article. In this respect, the applicant may also offer bail or both bail and security.
The return ordered under paragraph 1 must not affect the subsequent use of such article as evidence for proving the facts. In this respect, the inquirer or public prosecutor shall deliver any related order without delay, and may require the applicant to offer bail or to comply with any condition stipulated. If the applicant has breached the condition or refused to return the article upon an order thereof, the inquirer or public prosecutor, as applicable, shall be empowered to seize the article and enforce the bail bond. The procedure for application, stipulation of condition and delivery of order shall be prescribed in the ministerial regulation.
If the application has been denied by the inquirer or public prosecutor, the applicant may lodge with the court of first instance having criminal jurisdiction over such case an appeal against the order of denial within thirty days as from the date of receiving the order, and the court shall complete its examination within thirty days as from the date of receiving the appeal. Should the application be eventually granted by a judicial order, the court may also require the applicant to offer bail or may stipulate any condition as deemed appropriate. Any judicial order shall be final.
Section 86 No means of custody may be applied to the arrestee in excess of the necessity for prevention against his abscondence.
An arrestee may not be restrained beyond the necessity according to the circumstances of the case.In the case of petty offence, an arrestee may be restrained only for a period of time necessary for taking his statement and ascertaining his identity and residence.In the event that the arrestee has not been granted a provisional release and it is necessary to have an inquiry or prosecution taking place, he shall be brought before the court within forty eight hours after he has been brought to the office of inquiry under section 83. By reason of force majeure or other unavoidable reasons, the inquirer or public prosecutor may apply to the court for a warrant of detention of the arrestee.
In this respect, the court shall ask the arrestee whether he would raise any objection, and it may also require the inquirer or public prosecutor to demonstrate the necessity or to produce evidence for its consideration.In the case of offence liable to the maximum imprisonment for a term not surpassing six months, or to a fine not exceeding five hundred baht or to both, the court shall have the power to order one detention for a period not exceeding seven days.
In the case of offence liable to the maximum imprisonment for a term not less than six months but not more than ten years, or to a fine not less than five hundred baht or to both, the court shall be authorised to order several successive detentions not exceeding twelve days each, but the total period shall not exceed forty eight days.
In the case of offence liable to the maximum imprisonment for a term not less than ten years, irrespective of whether it be liable to any rate of fine also, the court shall be permitted to order several successive detentions not exceeding twelve days each, but the total period shall not be in excess of eighty four days.
In respect of paragraph 6, if, upon completion of forty eight days, the public prosecutor or inquirer applies to the court for further detention by reason of necessity, the court may grant the application only when the public prosecutor or inquirer has demonstrated such necessity and sufficiently introduced evidence for its hearing until it is satisfied.
In regard to the hearing under paragraphs 3 and 7, the accused shall be entitled to appoint a counsel in the interest of objection and direct examination. If the accused is not yet represented by any counsel for section 134/4 has not yet been proceeded with, the court shall, at his request, appoint one for him. The counsel appointed shall be entitled to the gratuity and outlays according to section 134/1, paragraph 3, mutatis mutandis.
In the event where an inquiry must take place in any locality other than that subject to the jurisdiction of the court ordering the detention of the accused, the inquirer may apply to the court for transferring such detention to the court of the locality where the inquiry is to be held. The court ordering the detention shall grant the application if it deems appropriate.
Section 87/1 If the public prosecutor applies for and the accused does not object, the court may allow the accused or evidence to be brought to any public agency office or other place as deemed appropriate where an inquiry or hearing may be organised by means of videoconferencing according to the regulation laid by the President of the Supreme Court of Justice with approval of the Plenary Session of the Supreme Court of Justice. Such regulation shall come into force upon its publication in the Government Gazette. Also, it shall contain the means whereby the inquiry or hearing may be implemented, as well as the eyewitnesses thereof.The hearing under paragraph 1 shall be deemed as if it were conducted in a courtroom.
Section 88 As regards a private prosecution, when the charge is admitted and the defendant is brought before the court, or, in regard to a public prosecution, when the charge is entered in court, the court may, by order, detain the defendant or provisionally release him.
Section 89 A warrant of detention or imprisonment shall be enforced inside the district of the court issuing it, save where the present Code or other law shall elsewise prescribe.
Section 89/1 In the case of necessity during an inquiry or trial, either upon application of the inquirer, public prosecutor, prison governor or official bearing the duty to enforce a warrant of imprisonment of the accused or defendant or proprio motu, the court may, by order, rule that such detention is to be carried in any place, other than a prison, as applied for by the mentioned person or as deemed appropriate by the court; prescribed that the detainee must be under the care of the applicant or official designated by the court. In this respect, the court may fix a period of time for such detention as deemed appropriate.In exercising its discretion to adopt an order under paragraph 1, the court may, prior to the delivery of such order, hold a hearing or ask whether the victim or official in connection with the warrant of detention would raise any objection.
The place under paragraph 1 shall not be a police station or a place employed by an inquirer for restraining his accused. In this respect, the types of such place shall be determined by the ministerial regulation wherein the means of custody and the measures against any possible abscondence or injury must be indicated.Upon rendering of the order pursuant to paragraph 1, if the accused or defendant later fails to comply with any of the means or measures according to paragraph 3 or if the circumstances have later changed, the court shall be empowered to alter such order or enforce the warrant of imprisonment.
Section 89/2 In the case of necessity, either upon application of the public prosecutor, prison governor or official bearing the duty to enforce a warrant of imprisonment of a person who has been sentenced by a final judgment to a term of imprisonment, and has undergone it for a period not less than one-third of that determined in the warrant, or for a period not less than ten years if his term is more than thirty years or is for life, or proprio motu, the court may, by order, rule that such imprisonment is to further be carried in any of the following manners:
In this respect, the court shall confer with the victim, the officials in connection with the warrant, the administrative or police officials of the locality or the person concerned according to its opinion.In delivering an order according to paragraph 1, the court shall entrust the official bearing the duty to enforce the warrant of imprisonment with the duty and responsibility to take charge of the order. Moreover, the provisions of section 89/1, paragraph 4 shall apply mutatis mutandis.
Section 90 Where any person is alleged to be unlawfully confined in a criminal case or in any other event, the following persons shall be entitled to submit a motion to the court empowered to exercise criminal jurisdiction over such locality for release of the person in question:
Deeming the motion is well-grounded, the court shall be authorised to, by order, direct the person carrying such confinement to bring the person in question before it without delay. And if the person carrying the confinement is unable to satisfy the court that such confinement is lawful, the court shall, by order, release the person in question at once.
Chapter 2Search
Section 91 The provisions of section 81/1 apply mutatis mutandis to search.
Section 92 A search may not be conducted in a private place without a warrant or an order thereof directed by a court, save where it is performed by an administrative or police official in any of the following events:
In exercising his power pursuant to (4), the administrative or police official conducting the search shall deliver to the possessor of the place searched a copied note of search, a list of the articles obtained from the search as well as a written statement of searchable grounds.
If the possessor is not there, the administrative or police official shall deliver such documents to him as earliest as possible, and shall without hesitation make and submit to his superior a written report as to the grounds for and the outcome of the search.
Section 93 A search may not be conducted upon the body of any person in a public place, save where it is performed by an administrative or police official when there is a reasonable suspicion that such person is carrying with him any article which is likely to be used for or has been obtained through the commission of an offence or whose possession constitutes an offence.
Section 94 An administrative or police official who is to conduct a search in a private place shall order the owner, inhabitant or keeper of such not to resist his admittance and to provide convenience in every respect for the purpose of enforcing the warrant of search. Also, the official shall produce the warrant of search or, if the search can be made without any warrant, state his name and position.
If the person mentioned in the foregoing paragraph resists the admittance of the official, the official shall be permitted to exercise physical force for the purpose of admitting the place and, where necessary, may force his way by opening or destructing any gate, door, window, fence or other similar barricade.
Section 95 In searching for a lost article, the official may, if possible, request the owner or possessor of such article or a representative of the owner or possessor to accompany with him.
Section 96 A search in a private place must be conducted couchant et levant, save:
Section 97 Where a search is to be conducted upon a warrant thereof, the official designated therein, or the person serving ad interim as such official who shall only be an administrative official ranking from third class or a police official ranking from police sub-lieutenant, shall be the chief official responsible for the enforcement of such warrant.
Section 98 A search in a private place can be conducted only for the purpose of discovering any person or article intended to be found, save:
Section 99 In conducting a search, the official shall avoid causing any damage and disorder to the best of his ability.
Section 100 Should there be a reasonable suspicion that any person present in the place searched or to be searched would cause obstruction to the extent that the search would be in vain, the official conducting the search shall be sanctioned to restrain such person or place him under the custody of another official during the search, in so far as it is necessary to prevent him from causing such obstruction.
Should there be a reasonable suspicion that such person has concealed on his body any article intended to be found, the official conducting the search shall be warranted to search his body in pursuance of section 85.
Section 101 Any article seized in the course of a search shall be enveloped, packed up, sealed or marked.
Section 102 Prior to searching a private place, the official conducting the search shall ensure the person concerned that he shall fairly perform his duty. And, as far as possible, the search shall be processed in presence of the possessor of the place or a member of his family or, failing such person, in presence of at least two other persons requested by the official to witness the search.
A search of a residence or office of the accused or defendant restrained or detained shall be conducted in presence of such accused or defendant. If such person is unable or does not wish to attend the search, he may appoint a representative or request any person to witness it in his lieu. Failing such representative or witness, the search shall be made before a member of the family of the accused or defendant or in presence of the witnesses pursuant to the foregoing paragraph.
The official shall allow the possessor of the place, member of the family, accused, defendant, representative or witness(es) to inspect any article seized for the purpose of acknowledgement. Had the acknowledgement been made or declined, this fact shall be noted down.
Section 103 The official conducting the search shall make a detailed note of search and a list of the articles found.The note of search and the list of the articles found shall be read to the possessor of the place, member of the family, accused, defendant, representative or witness(es), as applicable, and signed by such person(s).
Section 104 In the event that a search has been conducted by virtue of a warrant thereof, the official conducting the search shall forthwith deliver the note and the list set forth in the foregoing section, as well as, if possible, the articles seized, to the person issuing the warrant or any other official designated in the same.
In the event that a search has been conducted without a warrant thereof and by an official who is not an inquirer, the note, the list and the articles as described shall altogether be delivered to any inquirer or official requiring them.
Section 105 As for any letter, postcard, telegraph, printing or other document to be sent through a postal or telegraphic service by or to an accused or defendant, an official, in the interest of an inquiry, preliminary hearing, trial or any other act under the present Code, may apply for a judicial order demanding a post official to furnish him with the document required.
Should the Director-General of the Police Department or Commissioner of Changwat desire to use such document for the aforementioned purpose pending application for a judicial order, he shall be invested with the power to request the post officials to quarantine such document whilst pending such application.
The provisions of this section shall not apply to the correspondents between the accused or defendant and his counsel.
Chapter 3Provisional Release
Section 106 An application for provisional release, whether on own recognizance, with bail or with bail and security, of an accused or defendant, whether restrained or detained by virtue of a judicial warrant, may be made by the accused or defendant himself or by any interested person as follows:
Where the application is made to the court of first instance, such court of first instance shall straightway forward it to the court of second instance or court of last resort, as the case may be, for decision.
Section 107 Upon receipt of an application for provisional release, the official or court shall instantly deliver any order. A provisional release must be granted to every accused or defendant on the basis of the criteria set forth in sections 108, 108/1, 109, 110, 111, 112, 113 and 113/1.Every person concerned shall, without hesitation, comply with an order granting a provisional release pursuant to paragraph 1.(Table of contents)
Section 108 In deciding an application for provisional release, the followings must be taken into account:
For the purpose of complying with paragraph 1, the official empowered to grant a provisional release or the court may, in conjunction with his or its consideration, hear the fact, report or opinion submitted by any official invested by law with the power and duty concerned.
In granting a provisional release, the official empowered to so grant or the court may stipulate any condition governing the residence of the person provisionally released or any other condition to be observed by such person, in order to prevent his abscondence or any possible danger or injury which might ensue from the provisional release.
Section 108/1 An application for provisional release may be dismissed only by virtue of any of the following reasonable beliefs:
An order dismissing an application for provisional release must contain the grounds therefor. Moreover, the accused or defendant and the applicant shall be informed of the dismissal in writing without delay.(Table of contents)
Section 108/2 Where a key witness would be imperiled on account of a provisional release of the accused or defendant, such witness may submit to the inquirer, public prosecutor or court, as the case may be, a motion of objection.
Where any objection has been raised pursuant to paragraph 1, the inquirer, public prosecutor or court, whichever applies, shall consider it instantly. In this respect, he or it shall have the power to summons all persons concerned on both sides to give statement in conjunction with his or its consideration and for the purpose of making a decision, as deemed appropriate.
Section 109 Where an accused is accused of, or a defendant is charged with, an offence liable to the maximum imprisonment for a term exceeding ten years, if an application for his provisional release is made during an inquiry or during the court of first instance’s trial, the court shall ask the inquirer, public prosecutor or prosecutor whether he would raise any objection. If such asking cannot be made on justifiable grounds, it may be cancelled but the said grounds must be noted down.
Section 110 In a case of an offence liable to the maximum imprisonment for a term exceeding five years, a person to be provisionally released must provide bail and may also be demanded to provide security.In other case, a provisional release may be granted whether on own recognizance, with bail or with bail and security.The bail or security under paragraph 1 or 2 ought not to be demanded in excess of the necessity, subject to the criteria, procedure and condition prescribed in the ministerial regulation or regulation of the President of the Supreme Court of Justice, whichever applies.
Section 111 Where a provisional release is to be granted on own recognizance, the accused or defendant shall be required, prior to being released, to administer an oath or make an affirmation that he shall make a personal appearance as designated or summonsed.
Section 112 Where a provisional release is to be granted with bail or with bail and security, the bailor or bail bondsperson shall be required, prior to the granting of such release, to set his hand to the bail bond.A bail bond shall, apart from any other necessary clauses, contain the followings:
Section 113 Where a provisional release is granted by the inquirer or public prosecutor, whether with bail or with bail and security, such provisional release shall take effect in the course of the inquiry, or until the accused is detained by virtue of a judicial order during the inquiry, or until the charge against whom is admitted by the court, but it shall not be effective more than three months as from its first date. In case of necessity where the inquiry cannot be completed within such period of three months, the period may be extended to be more than three months but not exceeding six months.
Upon elapse of the period of time pursuant to paragraph 1, if it is still necessary to restrain the accused, such accused shall be delivered to the court and the provisions of section 87, paragraphs 4 to 9, shall apply.
Section 113/1 Where a provisionally release has been granted during the inquiry with cash or other financial security offered as the bail to the inquirer or public prosecutor, in so far as such bail is not yet returned to the person offering it, if the accused or defendant wishes to have the provisional release continued, he or any interested person may submit to the public prosecutor or court, whichever applies, a motion to have the aforesaid property remaining as the security. Deeming appropriate, the public prosecutor or court may, by order, prolong the provisional release with such cash or financial security regarded as the security during the proceedings of the public prosecutor or court, as the case may be. In this respect, the public prosecutor or court shall request the inquirer or public prosecutor, as applicable, to forward such security to him or it within a proper period of time.
Where a provisional release has been granted with any person standing as a bail bondsperson before the inquirer or public prosecutor, the public prosecutor or court may, at the request of such person, have him remaining as a bail bondsperson in regard to the provisional release. In this respect, the public prosecutor or court shall require the inquirer or public prosecutor, whichever applies, to forward any document concerned to him or it within a proper period of time.
Section 114 Where a provisional release is to be granted with bail and security, the applicant shall be required, prior to the granting of such release, to provide the security demanded.Security is of three kinds as follows:
Section 115 If, on account of subsequent information or by reason of detection of fraud or mistake, it appears that the bail bond has been made inadequately or insufficiently or the condition stipulated therein is inappropriate, the official or court shall be empowered to, by order, increase an amount of money in the bail bond, demand for additional security or alter the condition to become more suitable.
If, following an order granting a provisional release, the circumstances of the case have changed, the official or court shall be invested with the power to decrease the security as deemed appropriate.If the case is appealed to a superior court after a provisional release has been granted, the superior court shall be authorised to alter an amount of money in the bail bond or modify any condition stipulated by the inferior court as deemed appropriate.
Section 116 An application for cancelling a bail bond or withdrawing a security may be made when the bailor has delivered the accused or defendant back to the official or court.
Section 117 When the accused or defendant absconds or is about to abscond, the administrative or police official discovering such act shall be permitted to arrest the accused or defendant. However, had the act been discovered by the bailor or bail bondsperson, he may request the nearest administrative or police official to arrest the accused or defendant or, if impossible to promptly obtain assistance from the official, may make the arrest by himself and deliver the accused or defendant arrested to the nearest administrative or police official. In such respect, the official shall without hesitation cause the accused or defendant to be brought to the official or court concerned, and levy his travel expenses upon the bailor or bail bondsperson.
Section 118 When the case becomes final or the liability under the bail bond terminates according to section 116 or by any other cause, the security shall be returned to the person entitled thereto.
Section 119 In case of breaching a bail bond made with the court, such court shall be invested with the power to order enforcing the bail bond or deliver any other order as deemed appropriate without having any claim entered in court. Such order may be appealed by the person against whom the bail bond is enforced or by the public prosecutor. Any decision of the court of second instance shall be final.For the purpose of enforcement, the court of first instance trying and adjudicating such case shall be empowered to issue a warrant of enforcement against the property of the person liable under the bail bond as if he were a judgment debtor, and the chief of the court office shall be regarded as a judgment creditor in respect of the debt under such bail bond.
Section 119 bis Where an application for provisional release is dismissed by a judicial order, such order may be appealed by the applicant as follows:
The court of first instance receiving the appeal shall forthwith forward to the court of second instance or court of last resort for its consideration and decision such appeal and, as far as necessary, the file or a copy of the file.An order of the court of second instance which affirms the order of the court of first instance dismissing the application for provisional release shall be final, without prejudice to the right of reapplication for provisional release.
DIVISION 2INQUIRIES
Title 1
General Rules
Section 120 A public prosecutor may not enter a charge against any offence in court without having conducted an inquiry as to such offence.
Section 121 An inquirer shall be empowered to conduct inquiry in reference to all criminal offences.An inquirer may not hold inquiry as to a compoundable offence, save where a regular complaint thereagainst is made.
Section 122 An inquirer may not conduct inquiry in the following events:
Section 123 A victim may complain to an inquirer.Such complaint shall comprise of the name and address of the complainant, the nature of the offence, the circumstances whereunder the offence is committed, the injury sustained and the name or description of the offender as far as possible.
Such complaint may be made either in writing or orally. As for the written one, it shall contain the date thereof and the signature of the complainant. As regards the oral one, the inquirer shall make a note thereof containing its date and signed by both the inquirer and the complainant.
Section 124 A victim may complain to an administrative or police official who has the position or duty either subordinate or superior to an inquirer, and is charged by law with the duty to maintain peace and order.Upon receipt of a written complaint, the mentioned official shall forthwith forward it to an inquirer and may note any information down for the inquirer’s sake.
Upon receipt of an oral complaint, the stated official shall without delay bring the complainant to an inquirer for the purpose of making a note of the complaint pursuant to the foregoing section. In case of urgent need, the official may make such note by himself, but he shall forthwith forward it to the inquirer and may note any information down in the interest of the inquirer.
Section 124/1 The provisions of section 133 bis, paragraphs 1, 2 and 3, shall mutatis mutandis apply to the noting of the complaint in the event that the victim is a child not yet over its eighteenth year, save where, by reason of necessity, a psychologist or social worker, a person applied for by the child and a public prosecutor cannot be found or awaited and the child does not require the presence of, or does not desire to await, such person anymore, in which case the person receiving the complaint pursuant to section 123 or 124, whichever applies, shall record the said fact down into the note.
Section 125 When an inquirer or administrative or police official conducts the whole or part of an investigation or inquiry at the request for assistance, he shall bear the duty to cause a regular complaint to be made according to sections 123 and 124.
Section 126 The complainant may, at any time, alter or withdraw his complaint.In respect of a non-compoundable case, the withdrawal of the complaint does not prejudice the inquirer’s power of inquiry or the public prosecutor’s power of prosecution.
Section 127 The provisions of sections 123 to 126 shall mutatis mutandis apply to denunciations.An official bearing the duty to receive denunciations may not make a note of any denunciation in the following events:
(1) When the denunciator refuses to disclose his identity.
(2) When the denunciation is anonymous.An official receiving the denunciation may not deal with such denunciation if the denunciator declines to set his hand to the note thereof.
Section 128 An inquirer may delegate other officials as follows:(1) As for any activity in connection with an inquiry but required to be fulfilled outside his district, he may commission any competent inquirer to deal with it on his behalf.(2) As for any insignificant activity in relation to the inquiry, even required to be fulfilled inside his district, he may order his subordinate to deal with it on his behalf in so far as the present Code or other law does not require him to carry it out in person.
Section 129 In the event that the death is a consequence of the commission of an offence, an inquiry, including inquest pursuant to the provisions of the present Code concerning inquest, shall be held in respect of such death. In so far as the inquest is not yet completed, no charge may be entered against the accused in court.
Title 2Inquiries
Chapter 1
Ordinary Inquiries
Section 130 An inquiry shall be opened without delay. It may be held at any place wherever or any time whenever as deemed appropriate without the accused being present.
Section 131 An inquirer shall, as much as possible, collect every kind of evidence for the purpose of ascertaining all facts and circumstances in respect of the offence alleged, identifying the offender and proving the guilt or innocence of the accused.
Section 131/1 Where scientific evidence is required for the purpose of proving the facts pursuant to section 131, the inquirer shall be empowered to order any person, object or document to be analysed by scientific means.
As regards an offence liable to the maximum imprisonment for a term exceeding three years, if the analysis pursuant to paragraph 1 requires a specimen of blood, tissue, skin, hair, saliva, urine, fæces, secreted substance, nucleic acid or bodily organ to be collected from the accused, victim or person concerned, the responsible inquirer shall be invested with the power to order a physician or expert to carry out such analysis to the extent necessary and appropriate and in a manner causing slightest suffering to the person and not being detrimental against that person’s body or health. In this respect, the consent of the accused, victim or person concerned must be obtained. Should the accused or victim withhold his consent or perform any act to impede any person concerned from giving such consent without justifiable ground, it shall preliminarily be presumed that the fact is in line with the outcome of the analysis which, if having been held, would be noxious towards such accused or victim, as the case may be.
The outlays accruing from the analysis under this section shall be covered by the budget in pursuance of the rule issued by the National Police Headquarters, Ministry of Interior, Ministry of Justice or Office of the Attorney-General, as the case may be, with approval of the Ministry of Finance.
Section 132 For the purpose of collecting evidence, the inquirer shall be invested with:
Section 133 The inquirer shall be empowered to, by summons, require the victim or any person whose statement would light the case up to appear at the time and place designated in the summons. Upon his appearance, such person shall be interrogated.
In respect of such interrogation, the inquirer may require the person giving the statement to, before other things, administer an oath or make an affirmation in accordance with the provisions of the present Code governing parol evidence.
The inquirer shall not perform an act of reprehension or discouragement or employ any other deceit for the purpose of preventing any person from giving a statement which he is willing to give.In a case of a sexual offence, if the victim to be interrogated is a female, such interrogation shall be conducted by a female inquirer, save where the victim elsewise consents or there is any other necessity, in which event shall the said consent or necessity shall be noted down. Moreover, the victim may have any person attending her interrogation.
Where the victim witness is required to determine the offender during the arrest proceedings or to identify the accused in the interest of a prosecution, the administrative or police official or inquirer shall, taking into account the safety of the victim or witness according to the circumstances of the case, organise such determination or identification at a proper place and by the means of preventing the offender or accused from laying his eyes onto the victim or witness, save where the victim or witness otherwise consents, in which event such consent shall be note down.
Section 133 bis In a case of a sexual offence, offence against life and body which is not in light of an affray, offence against liberty, offence of extortion, offence of robbery and offence of brigandage under the Criminal Code, a case of an offence under the law on protection and suppression of prostitution, a case of offence under the law on protection and suppression of women and children trafficking, a case of an offence under the law on servicing houses or any other offence liable to a term of imprisonment, if the victim or witness is a child not yet over its eighteenth year, the inquirer shall, upon application of such child, interrogate it separately at a place suitable for it and in presence of a psychologist or social worker, a person applied for by it and a public prosecutor. Should the psychologist or social worker entertain an opinion that the interrogation of any child or any question would have a severe impact upon the mental condition of the child, the inquirer shall raise his questions through the psychologist or social worker in a manner that the child is prevented from hearing such questions. Nonetheless, the child shall not be questioned repeatedly without justifiable ground.
It shall be the duty of the inquirer to inform the psychologist or social worker, the person applied for by the child and the public prosecutor, including the victim or witness being a child, of the rights set forth in paragraph 1.
The victim or witness being a child may enter a challenge against the psychologist, social worker or public prosecutor participating in its interrogation. In this respect, the person so challenged shall be replaced.Subject to section 139, the inquirer shall cause the interrogation of the child under paragraph 1 to be recorded audiovisually by the means allowing a continuous broadcasting in order to bear witness thereof.
In case of an urgent need where it is reasonably unable to await the participation of the psychologist or social worker, the person applied for by the child and the public prosecutor, the inquirer may interrogate the child in presence of any of the persons set forth in paragraph 1, but the grounds whereon such participation cannot be awaited shall be noted down in the inquiry file and the interrogation conducted in such manner shall be deemed lawful.
Section 133 ter Where the inquirer deems it is necessary to have the victim or witness being a child not yet over its eighteenth year identifing any person, he shall organise such identification at a place suitable for the child, and by the means of preventing the person to be identified from directing any gaze towards the child, and in presence of a psychologist or social worker, a person applied for by the child and a public prosecutor, save the case of necessity where any of such persons cannot be found or awaited and the child does not require the presence or does not desire to await that person anymore, in which event the inquirer shall note such necessity down in the inquiry file.
Where the person to be identified is a child not yet over its eighteenth year, the inquirer shall organise such identification at a place suitable for the child and by the means of preventing the child from laying its eyes onto the identifier.
Section 134 Where the accused has been summoned by or delivered to or has surrendered himself to the inquirer, or where it appears that any person who makes a personal appearance before the inquirer is the accused, the information as to his given name, courtesy name, family name, nationality, parents, age, profession, residence and birthplace shall be extracted from him, and the facts as to the offence alleged and the charge shall then be informed to him.
The information under paragraph 1 shall be based on the reasonable evidence supporting that such person is likely to have committed the offence alleged.
The accused shall enjoy the right to an expeditious, regular and fair trial.
The inquirer shall allow the accused to enjoy opportunity to clear up the charge and to introduce any facts in his favour.Upon information of the charge, if it is not necessary to arrest the accused and no warrant of arrest has been issued against him, but the inquirer deems that the grounds for issuing a warrant of his detention are established pursuant to section 71, the inquirer shall be empowered to order the accused to take his present before the court immediately for the purpose of applying for a warrant of detention. If the court is shut or is about to be shut, the inquirer shall order the accused to attend court at the earliest occasion that the court is open. In such respect, section 87 shall mutatis mutandis apply to the issuance of a warrant of detention as applied for. Had the accused failed to comply with such order of the inquirer, he may be arrested as if it were the case of an urgent need where he can put under arrest without a warrant thereof, and the inquirer shall have the power to provisionally release or to restrain him.
Section 134/1 In a case of an offence liable to capital punishment or a case wherein the accused is below eighteen years on the day the inquirer informs the charge to him, the inquirer shall, prior to the interrogation, ask him whether he is represented by a counsel. Failing such, the State shall furnish him with a counsel.In a case of an offence liable to a term of imprisonment, the inquirer shall, prior to the interrogation, ask the accused whether he is represented by a counsel. Failing such, the State shall furnish him with a counsel.
As regards the furnishing of counsel pursuant to paragraph 1 or 2, the inquirer shall comply with the criteria, procedure and conditions prescribed by the ministerial regulation, and the counsel furnished shall be entitled to the gratuity and outlays in conformance to the rule issued by the Ministry of Justice with approval of the Ministry of Finance.
If the counsel, upon having been furnished to the accused pursuant to paragraph 1, 2 or 3, is unable to meet with the accused without informing his obstacle to the inquirer, or if the counsel has made such information but fails to meet with the accused within a reasonable time, the inquirer shall, by virtue of an urgent need, interrogate the accused without having to await such counsel, but he shall not this fact down in the inquiry file.
Section 134/2 The provisions of section 133 bis shall mutatis mutandis apply to the inquiry of an accused being a child not yet over its eighteenth year.
Section 134/3 Every accused shall be entitled to have his counsel or a person in whom he reposes attending his interrogation.
Section 134/4 In interrogating an accused, the inquirer shall, before other things, enlighten him that:
Any statement given by the accused to the inquirer prior to the enlightenment of the rights set forth in paragraph 1, or prior to the observance of sections 134/1, 134/2 and 134/3, may not be admitted as evidence for proving his guilt.(Table of contents)
Section 135 In interrogating an accused, the inquirer shall not perform or cause to be performed an act of promising, threatening, deceiving, torturing, forcibly compelling, or, by unlawful means, encouraging the accused to give any statement in respect of the charge against him.
Section 136 (Repealed)
Section 137 Whilst holding an inquiry at a personal residence or elsewhere, the inquirer shall be invested with the power to order prohibiting any person from leaving such place for a period of time as necessary.
Section 138 The inquirer shall be empowered to conduct an inquiry in person or by means of commission in order to obtain information as to the background and habitual conduct of the accused; prescribed that all the information obtained must be informed to the accused.
Section 139 The inquirer shall make a note of his inquiry pursuant to the general rules under the present Code governing inquiry, and attach to the file such note and other documents obtained, including all notes and documents submitted by other relevant inquirers.
As regards the documentary exhibits, they shall be attached to the file. As for other exhibits, a detailed list thereof shall be drawn up and attached to the file.
For the purpose of securing an appearance of a witness before the court according to the court’s designation, the inquirer shall make and keep at his office a note as to the witnesses’ names, residences or addresses, telephone numbers or other means allowing communication with those witnesses.[97](Table of contents)
Section 140 Deeming the inquiry is completed, the responsible inquirer shall carry out any of the followings: If the offender could not be identified and the offence is liable to the maximum imprisonment for a term not exceeding three years, the inquiry shall be stayed and a note of the grounds therefor shall be drawn up, then the note, together with the file, shall be forwarded to the public prosecutor.
Should the offence be liable to the maximum imprisonment for a term over three years, the inquirer shall submit to the public prosecutor the file together with his opinion as to the expediency of staying the inquiry.Had the public prosecutor ordered the inquirer to be stayed or continued, the inquirer shall abide by such order. If the offender could be identified, the following four sections shall apply.
Section 141 If the offender is identified, but it is unable to summons or arrest him, the inquirer shall, pursuant to the outcome of the inquiry, submit an opinion as to whether an order of prosecution or non-prosecution should be made, together with the file, to the public prosecutor.
Had the public prosecutor concurred in an order of non-prosecution, he shall conclude the inquiry by rendering an order of non-prosecution and inform the inquirer of such order.Had the public prosecutor viewed that the inquiry should be continued, he shall order the inquirer to so perform.
Had the public prosecutor accorded with an order of prosecution, he shall undertake any measures in order to obtain the person of the accused or, where the accused is residing in a foreign state, make an application for extradition.(Table of contents)
Setion 142 If the offender is identified and is restrained, detained or provisionally released, or it is believed that he would appear upon being summonsed, the inquirer shall, pursuant to the outcome of the inquiry, submit an opinion as to whether an order of prosecution or non-prosecution should be made, together with the file, to the public prosecutor.
Deeming an order of non-prosecution should be made, the inquirer shall render to the public prosecution the file and such opinion only. As for the accused, the inquirer shall be empowered to release or provisionally release him or, if he is detained, may apply or request the public prosecutor to apply to the court for his release.
Deeming an order of prosecution should be made, the inquirer shall deliver to the public prosecution the file together with the accused, save where the accused is already detained.If the offence may be settled by the inquirer and the offender has complied with the settlement, the inquirer shall draw up a note thereof and forward it together with the file to the public prosecutor.
Section 143 Upon receipt of the opinion and the file submitted by the inquirer according to the foregoing paragraph, the public prosecutor shall comply with the followings:
In any of the aforementioned events, the public prosecutor shall be permitted to:
Where the death is the consequence of an act of an official who alleges that he himself has performed a public duty, or where the death has occurred during the restraint employed by such official, only the Director-General of the Public Prosecution Department or the person serving ad interm as the Director-General shall be given the power to issue an order of either prosecution or non-prosecution.
Section 144 Upon having directed an order of prosecution, the public prosecutor, by virtue of the fact that such offence may be settled, may, sua sponte, exercise the power as follows:
Section 145 Where an order of non-prosecution is issued not by the Director-General of the Public Prosecution Department, the inquiry file and such order shall forthwith be forwarded to, in Nakhon Luang Krung Thep Thon Buri, the Police Department’s Director-General, Deputy Director-General or Assistant Director-General or, in other Changwat, the Governor of such Changwat. However, in neither case shall the public prosecutor be debarred from dealing with the accused according to section 143.
Had the order of the public prosecutor been opposed, in Nakhon Luang Krung Thep Thon Buri, by the Police Department’s Director-General, Deputy Director-General or Assistant Director-General or, in other Changwat, by the Governor of such Changwat, the file, together with the opposing opinion, shall be submitted to the Director-General of the Public Prosecution Department for decision. If the prescription of such case is about to lapse or if there is any other necessity whereby a prosecution must take place straightway, the prosecution shall, in the meantime, be instituted pursuant to the opinion of the Police Department’s Director-General, Deputy Director-General or Assistant Director-General or the Governor of Changwat.
The provisions of this section shall mutatis mutandis apply to the public prosecutor’s filing an appeal to the court of second instance or court of last resort or entering a nolle prosequi in the court of first instance, court of second instance or court of last resort.
Section 146 A final order of non-prosecution shall be informed to the accused and the victim. If the accused is being restrained or detained, any measures shall be undertaken to set him at liberty or an application shall be made to the court for discharging him, whichever applies.
Upon issuance of a final order of non-prosecution by the public prosecutor, the accused or any interested person shall be entitled to apply to the public prosecutor for the brief information as to evidence and the inquirer or public prosecutor’s opinion in making such order, prescribed that this application shall be made within a period of prescription for such prosecution.
Section 147 Upon a final order of non-prosecution, no any inquiry may be conducted against the same person in respect of the same case, unless fresh evidence which is material to the case and would probably lead to the conviction of that person is obtained.(Disapproved by the House of Representatives)[102](Table of contents)
Chapter 2Autopsies
Section 148 Whenever it is manifested or reasonably suspected that any person has died an unnatural death or died while being restrained by an official, an autopsy shall be held, save where the person has been put to death lawfully.
Such unnatural death consists of:
Section 149 Wherever an unnatural death occurs, a spouse, relative, friend or guardian of the deceased who is aware of such death shall be obliged to:
The obligations under the foregoing paragraph shall also extend to all other persons who discover the corpse at the place where none of the spouse, relatives, friends or guardians of the deceased is present.Any person who fails to comply with the obligations under this section shall be liable to a fine not exceeding one thousand baht.
Section 150 Whenever an autopsy is required, it shall be held without hesitation by an inquirer of the locality where the corpse is, together with a forensic pathologist upon whom a certificate or a Medical Council’s letter of approval has been conferred. Where no such forensic pathologist could be found or where he is unable to perform the duty, a physician affiliated with a public hospital shall act in his place. Where no such physician affiliated with a public hospital could be found or where he is unable to discharge the duty, a physician subsidiary to a provincial public health office shall act in his lieu. Where no such physician subsidiary to a provincial public health office could be found or where he is unable to carry out the duty, a physician subordinate to a private hospital, or a medical practitioner having registered as a voluntary physician in compliance with the rule of the Ministry of Public Health, shall act instead of him. In engaging in such activity, the said physician subordinate to a private hospital or medical practitioner shall become an official under the Criminal Code. In this respect, the inquirer and the physician shall together and without delay make a note of all particulars as to the autopsy, while the physician shall also make a report annexed to the note within a period of seven days as from the date of receiving the information.
By reason of necessity, such period may be extended not more than twice for a period not exceeding thirty days each, but the grounds for each extension and the necessity of the same shall also be noted down in the autopsic file. The mentioned report shall be deemed to be part of the autopsic file. With the condition that the death is not the consequence of the commission of an offence, when the autopsy is over, the inquirer shall straightway forward the autopsic file to a public prosecutor and the public prosecutor shall then proceed with section 156.
The inquirer shall be charged with the duty to inform the persons concerned to hold an autopsy. Moreover, prior to such autopsy, the inquirer shall, as far as possible, enlighten a spouse, ascendant, descendant, statutory agent, guardian or relative of the deceased on the performance.
When the death is the consequence of an act of an official who alleges that such act has arisen through his performance of public duty, or when the death has occurred during the restraint employed by an official who alleges that such death has occurs in the course of his performance of public duty, a public prosecutor, an administrative official ranking as or from the Assistant Chief Officer of Amphoe of the locality where the corpse is, together with the inquirer and the physician pursuant to paragraph 1, shall perform an autopsy and the provisions of paragraph 2 shall apply.
When the autopsy under paragraph 3 is over, the inquirer shall require the public prosecutor to accompany him in drawing up an autopsic file within a period of thirty days as from the date whereon the public prosecutor has received the information. In case of necessity, such period may be extended not more than twice for a period not surpassing thirty days each, but the grounds for each extension and the necessity of the same shall be noted down in the autopsic file.
Upon receipt of the autopsic file, the public prosecutor shall, within a period of thirty days as from the date of such receipt, enter in the court having jurisdiction over the locality where the corpse is a motion requesting such court to hold an inquest and render an order indicating, as far as possible, the information as to the name of the deceased, the place and time of the death, the cause and circumstances of the same and, if it is certain the death has been caused by an act of any person, such person. In case of necessity, such period may be extended not more than twice for a period not exceeding thirty days each, but the grounds for each extension and the necessity of the same shall be noted down in the autopsic file.
In regard to the duty pursuant to paragraphs 1, 3, 4 and 5, the inquirer shall abide by the instructions of the public prosecutor.In respect of the inquest under paragraph 5, the court shall post up at its office a notification fixing the day of inquest, and the public prosecutor shall request the court to, for a period not less than fifteen days, serve a copied motion upon and inform the day of inquest to at least one of the spouse, ascendants, descendants, statutory agents, guardians or relatives of the deceased. Moreover, the public prosecutor shall produce before the court all the evidence in relation to the death.
After the court has posted up a notification fixing the date of inquest, any of the spouse, ascendants, descendants, statutory agents, guardians or relatives of the deceased shall be entitled to, before the inquest is completed, apply to the court for cross-examining any witness introduced by the public prosecutor and producing any other evidence. For such purpose, the spouse, ascendant, descendant, statutory agent, guardian or relative of the deceased may appoint a counsel to represent him. Failing such counsel, the court shall appoint one to stand on the side of the deceased’s relative.If the court, in the interest of justice, deems appropriate, it may summons any witness who has once been heard to be reheard or may order other evidence to be taken, and it may require a qualified person or expert to appear and give opinion in collaboration with the inquest and the rendering of order; without prejudice to the right of the person producing evidence under paragraph 8 to apply to the court for summonsing other qualified person or expert to give an opinion for the purpose of refuting or supplementing the opinion given by the aforesaid qualified person or expert.
Any judicial order in pursuance of this section shall be final, without prejudice to the right of prosecution and the judicial trial and adjudication in the event that a prosecution in relation to such death has been or is to be instituted by the public prosecutor or other person. Upon having rendered any order, the court shall dispatch its inquest file to the public prosecutor for the purpose of further operation.
The physician under paragraph 1, the official performing the autopsy as well as the qualified person or expert who has made his presence before the court for giving opinion under this section shall be entitled to the remuneration or fees as well as travel expenses and residence outlays according to the rule issued by the Ministry of Justice with approval of the Ministry of Finance. The counsel appointed by the court under this section shall also be entitled to the gratuity and outlays as on a par with the counsel appointed by the court under section 173.
Section 150 bis Any person performs any act to the corpse or a surrounding area where the corpse is discovered before the autopsy is completed, in a manner likely to cause the autopsy or the consequence of the case to be changed, save where the act is necessary for protecting public health or preserving other public interest, such person shall be liable to imprisonment for a term as from six months to two years, or to a fine as from one hundred thousand baht to four hundred thousand bath or to both.Had the act under paragraph 1 been performed dishonestly or for the purpose of concealing the case, the person shall be liable to twice heavier penalties than those prescribed for the offence.
Section 151 Where it is necessary to ascertain the cause of the death, the official performing the autopsy shall be invested with the power to order the corpse to be dissected and any portion thereof to be analysed, or the whole or part of the corpse to be delivered to a public physician or analyst.
Section 152 The public physician or analyst shall:
Section 153 Had the corpse been inhumed, the official performing the autopsy shall have it exhumed, save where it is unnecessary or it would be detrimental to the public health.
Section 154 The official performing the autopsy shall render an opinion in writing as to, as much as ascertained, the cause and circumstances of the death, the name of the deceased, the place and time of the death and, if he ensures or suspects that the death has been caused by an act of any person, such person.
Section 155 The provisions of the present Code governing inquiry shall mutatis mutandis apply to autopsy.The provisions of section 172 ter shall mutatis mutandis apply to the inquest under section 150, if a witness therein is a child having not yet attained its eighteenth year.
Section 155/1 In the event that the death is the consequence of an act of an official who alleges that such act has arisen through his performance of public duty, or the death has occurred during the restraint employed by an official who alleges that such death has occurs in the course of his performance of public duty or the deceased is said to have fought or resisted against an official who alleges that he himself performed a public duty, the inquirer shall require the public prosecutor to accompany with him in drawing up an inquiry file in relation to such event.
The inquirer shall be responsible for drawing up the inquiry file under paragraph 1. In this respect, from the most possible and earliest occasion reckoning from the commencement of the inquiry, the public prosecutor may render any advice to the inquirer, inspect all the evidence, interrogate the persons concerned, or order such interrogation to be held; subject to the criteria and procedure prescribed in the ministerial regulation.In case of urgent need and on reasonable grounds, if the participation of the public prosecution cannot be awaited, the inquirer may solely draw up the inquiry file but he shall also note this fact down in the file. The file drawn up in such manner shall never be deemed unlawful.
Section 156 In the event that the death is not the consequence of the commission of an offence, the autopsic file shall be delivered to the Commissioner of Changwat[17].(Table of contents)
DIVISION 3COURT PROCEEDINGS IN FIRST INSTANCE
Title 1
Entry of Charge and Preliminary Hearing
Section 157 A charge shall be filed to any jurisdictional court pursuant to the provisions of the present Code or other laws.
Section 158 A charge shall be made in writing, and shall contain:
Section 159 If the defendant has been convicted of an offence before and the prosecutor wishes to apply for enhancing the penalties on account of recidivism, he shall make such application in the charge.
If an application for enhancement is not indicated in the charge, the prosecutor may, prior to the court of first instance’s rendering of judgment, submit to the court a motion for supplementing the charge. Deeming appropriate, the court may grant the motion.
Section 160 The multiple offences may be joined in the same charge, prescribed that they shall be arranged separately and consecutively.
They may be regarded independent from each other. Deeming appropriate, the court may order any of them to be tried disjointly. Such order may be rendered either prior to the trial or in the course of the trial.
Section 161 With the condition that the charge is preferred in conflict with law, the court shall, by order, direct the prosecutor to have the charge corrected, or dismiss or exclude the charge.The prosecutor shall be entitled to appeal against such judicial order.
Section 162 In the event that the charge is found to be in accordance with law, the court shall order as follows:
(1) If it be a private prosecution, a preliminary hearing shall be opened. Had a public prosecution been brought on account of the same offence also, the court shall order according to subsection (2).
(2) If it be a public prosecution, a preliminary hearing is not necessary. However, the court, proprio motu, may order open such preliminary hearing.In the event that the said preliminary examination is ordered, if the defendant pleads guilty, the court shall admit the charge for trial.
Section 163 On appropriate grounds, the prosecutor shall be entitled to submit to the court of first instance prior to its delivery of judgment a motion for modifying or supplementing the charge. Deeming appropriate, the court may grant the motion or may order a preliminary hearing to be opened first. Having granted the application, the court shall serve a copy of the modified or supplemented charge upon the defendant in expectation of his plea and may order the supplementary charge to be tried disjointly.
On reasonable grounds, the defendant may submit to the court of first instance prior to its delivery of judgment a motion for modifying or supplementing his plea. Deeming appropriate, the court shall serve upon the prosecutor a copy thereof.
Section 164 A motion for modifying or supplementing the charge shall not be granted if it would impair the defendant’s contention. However, any mistake as to the offence or particulars required to be indicated in the charge may be corrected and the offence or particulars not having been indicated in the charged may be added at any stage of the court of first instance’s trial, and this shall not deemed to be prejudicial to the defendant, save where it causes the defendant to be fogged in defence.
Section 165 As for a public prosecution, on the day of preliminary hearing the defendants shall appear or shall be brought before the court and the court shall serve a copied charge upon them one by one. Having been satisfied with the identity of the defendants, the court shall read and explain the charge to them. It shall then ask them whether they have committed the offence in reality and how they would set up their defence. Any statement given by the defendants shall be noted down. The fact that any of them wishes to remain silent shall also be noted down. Following that, the court shall further proceed with the case.
The defendant shall not be entitled to adduce evidence in the course of the preliminary hearing, without prejudice to his right to obtain the assistance of a counsel.As for a private prosecution, the court shall be empowered to hold a preliminary hearing reo absente. The court shall serve a copied charge upon one defendant after the other. The defendant may attend the preliminary hearing in person, or may also appoint a counsel to cross-examine the prosecution witnesses. If the defendant does not wish to so attend, he may appoint a counsel to conduct a cross-examination on his behalf. The court may not require the defendant to give any plea. Furthermore, prior to the court’s admittance of the charge, the defendant shall not be treated as such.
section 166 When the prosecutor fails to attend court as required, the charge shall be dismissed. However, the court, deeming such nonappearance is on justifiable grounds, may order the adjournment.
When the case has been so dismissed, if, within fifteen days as from the date of such dismissal, the prosecutor enters in court a motion demonstrating the justifiable grounds for his nonappearance, the court shall resume the preliminary hearing.
When the case has been so dismissed, the defendant shall not be once again subject to a prosecution on account of the same charge. However, where only a private citizen stands as the prosecutor in the case dismissed, the dismissal does not prejudice the public prosecutor’s power to reenter the charge, save where the case is of a compoundable nature.
Section 167 Should there be a prima facie case, the court shall admit for trial the charge only with respect to the count wherefor the prima facie case exists. Had there been no prima facie case, the charge shall, by judgment, be dismissed.
Section 168 Upon the court’s admittance of the charge, a copied charge shall be served upon the defendants one by one, save the one who has already obtained a copy.
Section 169 When the court has admitted the charge but the defendant has not yet appeared before it, the court shall, as deemed appropriate, issue a summons or warrant of arrest of the defendant for the trial’s sake.
Section 170 An order of the court deciding that a prima facie case does exist shall be final. An order of the court deciding that a prima facie case does not exist may be appealed by the prosecutor to the court of second instance or court of last resort pursuant to the provisions on appeal to court of second instance and final appeal.
Upon application of the prosecutor, the court may detain or provisionally release the defendant pending appeal to the court of second instance or final appeal.
Section 171 Save section 175, the provisions on inquiry and trial shall mutatis mutandis apply to preliminary hearing.The provisions of sections 133 bis and 172 ter shall mutatis mutandis apply to preliminary hearing in case a witness is a child not yet over its eighteenth year, irrespective of whether it be private prosecution or public prosecution.
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